The Illusion of Judicial Objectivity 
Posted By Mirko Bagaric on March 17th, 2007
The Chief Justice of the High Court Murray Gleeson is not a big fan of parliamentary sovereignty. That’s one of the chief messages to emerge from his address to the Judicial Conference of Australia recently.
The Chief Justice’s speech while ostensibly extolling the agenda-free nature of our courts, in fact highlights the innately politicised nature of the judicial task. The speech is a thinly veiled political statement suggesting that judges need to curtail governmental limitations on civil rights in response to the terrorist threat.
In commenting on the propriety of laws which are designed to protect public safety, the Chief Justice states that ‘the law sets boundaries on that power. The law limits the capacity of the government to respond to threats to the public’ and that the courts declare these limits.
This grossly overstates the role of courts – at least Australia – in securing the balance between the common good and individual rights. Properly understood, the law is in fact the means by which the government sets the balance between public safety and individual rights. The law facilitates the government in this important task. It does not restrict it to any meaningful extent.
The High Court’s role in curtailing laws which are designed to protect the community is minimal in the extreme. That’s why, in a democracy without a constitutionally entrenched bill of rights, it would almost certainly be lawful for parliament to declare that all blue eyed babies are to be killed.
Sure, the separation of powers is an entrenched part of the constitution but it seems to have lost its teeth as a vehicle for invalidating rights trumping laws following the decisions of Fardon and Al-Kateb in 2004, where the High Court approved of ‘non-punitive’ detention in circumstances far removed from the traditional protections associated with findings of criminal guilt.
The other key message to be drawn from the Chief Justice’s speech is that the rule of law virtues of consistency, predictability and the absence of ad hoc discretionary decision-making are central to our system of democracy, except when it comes to reigning in the discretion of judges to impress their personal political and philosophical preferences on the rest the community.
In the land mark sentencing case of Markarian last year, Gleeson CJ approved of the instinctive synthesis approach to sentencing, which effectively gives judges an unfettered discretion in their choice of sanction. In upholding this approach he rejected a two-step, systematic approach to sentencing which would inject a semblance of predictability and certainty into the sentencing calculus.
This is a curious decision to make for a person who is apparently so enthusiastic about legal predicability. Then again, the main rule of law virtue that judges are keen to uphold is that judges are the ultimate arbiter of legality. That is not surprising. It is human nature to want to retain power and shape the world according to one’s sentiments. The Chief Justice’s speech gives weight to this.
Another illuminating aspect of the speech is the tendency to confuse judicial sentiment with community values. Thus, the Chief Justice boldly states that ‘the rule against the admissibility of involuntary confessions is no doubt an inconvenience for those who enforce the criminal law. It is an inconvenience they are obliged to accept. The alternative, that is to say, receiving evidence of forced confessions, is a price we are not willing to pay in order to secure convictions’.
It seems that he is wrong on this point. The community apparently wants evidence of involuntary confessions received. A Morgan Gallop Poll two weeks ago regarding the propriety of the police beatings in Melbourne showed that it was only a minority (45 per cent) of respondents that said police should never beat suspects.
The tendency for judges to arrogate their views in such a manner displays a failure to grasp the fundamental essence of democracy (each person’s preferences count equally) and highlights why judicial discretion must be curtailed to the maximum extent possible.
The propriety of judges making extra-judicial comments on controversial social issues is much in dispute. For mine, I think it is highly desirable for them to come clean and inform the community and potential litigants of their political and philosophical persuasions. Judges don’t evaluate important legal issues afresh. Like the rest of us, certain ideologies and values are wired into their minds and these impact on all their decisions which have a normative dimension. The wiring is not necessarily fixed, but in order to re-work it litigants need to know exactly how much cajoling is necessary for the light to be switched on.
However, it is impertinent for judges to declare in advance the conclusions of their political and normative stances where these relate to legal issues upon which they may be required to adjudicate. This raises the danger that they will be seen to have pre-judged matters, thereby undermining the impression of judicial impartiality.
It is not clear whether the Chief Justice has crossed this line in relation to the issue of the admissibility of confessions obtained by inducements or coercion. But what is clear is that there won’t be a flood of special leave applications by the resource-stretched DPPs around the country seeking clarification from the Gleeson High Court on what degree of coercion makes a confession involuntary.
Yet, the speech by the Chief Justice is of considerable benefit to jurisprudence in this county. It will thankfully go a long way to finally erasing from the texts of Australian law books the fiction that judges don’t have preconceived views about many matters before them.
The notion of judicial impartiality and objectivity is a con. Judges don’t just interpret the law. They make it – or at least that is what they will do if the legislature gives them an inch – to suit there underlying political and moral sentiments. As noted by Allan Dershowitz earlier this year: ‘Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality. … On many occasions, the impact of [a judge’s] biography is overt and conscious. Other times it is subtle and unconscious. But it is always there’.
Fortunately, parliamentary sovereignty can ensure that the law reflects the will of the people. But for this process to work effectively, legislatures need to draft laws which accord judges the barest of wriggle room, otherwise judges will continue to infuse the law with their subjective whims – of this there can be no doubt.
A version of this was published in The Australian on 6 November 2007.