Twenty years after the High Court's Wik decision, how does the 'judicial activism' charge stand up?

2016 marks 20 years since the High Court handed down the Wik Peoples v Queensland decision on the extent to which pastoral leases over land in Queensland extinguished native title. This year also marks the 20-year anniversary of the stoking of the judicial activism debate in Australia.

It is no coincidence that the rise of the “judicial activism” terminology coincided not only with the Wik decision, but also with the new Coalition government’s campaign to ensure all arms of government focused on the protection of “mainstream” interests. The Coalition argued these had been ignored at the expense of progressive, boutique interests during the Keating government years.

The terminology’s sudden prominence – one of the Coalition campaign’s byproducts – had a profound effect on the way the High Court’s work was discussed.

Where did it come from?

“Judicial activism” was coined in the US. It has never been regarded as a term of art in the legal field in any jurisdiction.

Historian Arthur Schlesinger Jr first used the term to describe a particular voting bloc on the US Supreme Court in the 1940s. He gave no precise definition, but suggested the “activists” were more likely than the other, more restrained, voting bloc to use the US Constitution’s civil rights protections to invalidate legislation.

Schlesinger considered his term to be politically neutral. In academia in the 1950s and 1960s, some legal scholars expressed an early scepticism about his terminology.

Academics were aware that “activism” appeared to lack a fixed definition. Did it involve a discernible method of interpreting the constitution? Or did the “activist” label merely apply to a judicial outcome?

The terminology only took off in public discourse in the US in the 1970s and 1980s. The presidential campaigns of both Richard Nixon and Ronald Reagan harnessed it as a pejorative to describe the Supreme Court’s work.

Nixon and Reagan argued the court’s supposed implicitly progressive activism – protecting the rights of African Americans and the criminally accused, for instance – could only be quelled (and power returned to Congress) by a Republican president being given the opportunity to appoint strident anti-activists to the bench.

By this point, many academics and judges in Australia were aware of the terminology. However, they regarded it either as tainted as political language, or as a term uniquely applicable to the US. It was linked with bill of rights litigation, which is of less significance in Australia due to the lack of explicit civil rights protections in the Australian Constitution.

The same might be surmised of the popular media. They also avoided using the term, even as the High Court handed down politically charged decisions in the 1980s. The term remained dormant in Australia until the early 1990s.

“Judicial activism” only came to the fore in Australia between 1992 and 1995, as the Mabo native title decision was handed down, followed by a suite of decisions on implied rights in the constitution.

A handful of commentators and academics also used it rather innocuously, in passing, in this period. This was perhaps because they were aware of the term’s inherent ambiguity.

In 1996, as “judicial activism” entered political discourse, it assumed a new dimension as a term of absolute denunciation in Australia. In the years ahead, chief justices as diverse in views as Anthony Mason, Murray Gleeson and Robert French all warned against the activist label. This was because it concealed, rather than revealed, the essential critique that was being made of the High Court.

How it took hold in Australia

The Wik decision involved no “civil rights” questions. The High Court majority decided the grant of a pastoral lease did not necessarily extinguish native title, but would extinguish native title to the extent of any inconsistency.

This was hardly a judgment that promoted native title interests at any expense. But it nevertheless rankled the Coalition at both federal and state level as an example of sectional interests prevailing. The pastoralists were seemingly regarded as representative of “mainstream” interests in this case.

The deputy prime minister, Tim Fischer, and Queensland premier, Rob Borbidge, repeatedly attacked the High Court for its activism in Wik in “making [native title] law”, rather than interpreting it.

Borbidge’s view of the work of the High Court was simplistic. The High Court has always made law; this is not a matter of controversy. But the prime minister, John Howard, and others tacitly acknowledged the use of the terminology after Borbidge’s remarks.

Within a matter of weeks, a sustained public attack on the High Court had begun. The majority judges were described as “bogus”, “purveyors of intellectual dishonesty” and “undermining democracy” in further developing a framework for the recognition of native title.

A judicial activist, it seemed, engaged in non-judicial behaviour. They decided cases in favour of a preferred (non-“mainstream”) litigant or interest, to reach a result that was inconsistent with a conservative worldview. Whether there was any particular method discernible as constituting activism was another question entirely.

These early accusations seemed to equate activism with (progressive) results-oriented decision-making. However, it appeared no early protagonists in the debate were able to flesh out their claim that the majority decision in Wik was devoid of reasoning, or a ruse to mask the court’s progressive agenda.

Later attempts to give the term meaning also failed to gain traction. Was activism equated with dynamic (as opposed to legalistic) reasoning? Or did it involve significant change and expansion to common law principles, often to parliament’s surprise? Or the use of non-legal sources – for instance, works on Australian history – to buttress arguments?

Did judicial activism involve recourse to international legal materials rather than relying on Australian precedent? Or was there no method at all?

The only common thread was that activism – whatever it may be – was not something a judge should ever engage in.

Here to stay?

Using a catchphrase such as “activism” allows a commentator to avoid giving explicit reasons for their disapproval for a decision, while nevertheless using the catchphrase to accuse the bench of judicial illegitimacy.

It is a serious and derogatory charge to make of a court. It is a potentially unjust charge to make if no working definition of activism is disclosed at the outset. This is especially so when a commentator’s implicit understanding of activism extends only to examining the ultimate result in the case and deciding whether it accords with their own political preferences.

The term, it seems, is here to stay, both in certain sections of academia and elsewhere. It has arisen as an accusation levelled at the Federal Court while processing refugee claims, and has been described as a potential threat that might arise should a bill of rights be introduced in Australia.

Even over the past year, commentators have argued that proposals for Indigenous recognition in the Constitution will further encourage the courts’ activism. They have also argued that criticism of the former High Court judge presiding over the trade unions royal commission, Dyson Heydon, fails to appreciate his impartiality as an anti-activist.

Will the popular media assess the potential candidates for the soon-to-be-vacant seat of High Court chief justice through the “activist” lens?

Informed critique of the courts and their work is essential to the proper functioning of a democracy. Unhelpful shorthand phrases, however, do not assist with producing informed critique. Rather, they promote a form of opaque criticism that may well cloak analysis (or lack thereof) of court judgments, if not judicial outcomes.

Tanya Josev does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.