Two former High Court judges joined recent celebrations marking the 21st anniversary of publication of The Laws of Australia, Australia’s own legal encylopaedia.
While on the bench, Justice Michael Kirby and Justice Dyson Heydon sat at opposite ends of the spectrum concerning judicial activism. They each independently earned the title of “great dissenter” to reflect their propensity for writing their own judgments and disagreeing with majority opinion in a large number of cases.
Each Judge developed a reputation for dissent as they reached the later years of their respective judicial careers. In 2012, Justice Heydon dissented in more than 40% of the matters he heard. Similarly, in 2006, Justice Kirby’s dissent rate was 48%.
Despite a tendency towards dissent, the two Judges had differing opinions on judicial activism and the appropriate role of the judge.
Justice Heydon’s 2003 speech on “Judicial Activism and the Death of the Rule of Law”, published in Quadrant Magazine Law Journal, summarized his perspective on what he termed the “deliberate alteration of the law by judges” or “judicial law-making”. By contrast, Michael Kirby defended judicial activism, declaring: “appropriate activism” to be “conforming to duty” in Melbourne University Law Review Vol 30(2): “The judiciary should not be undermined from within by those whose formalism has temporarily blinded them to their sworn duty to do right to all peoples, to the full extent that the law permits, whilst they occupy the judicial seat.”
These two legal veterans attended the recent 21st birthday celebrations for The Laws of Australia, and can agree on the value of a dedicated legal encyclopaedia covering all Australian jurisdictions. The Hon Michael Kirby was appointed Editor-in-Chief of the encyclopaedia in 2009, and since then has lent his expertise and guidance to improving the currency of the publication and ensuring it evolves along with developments in the law, to remain relevant to all Australian practitioners.
The Hon Dyson Heydon praised the encyclopaedia’s statutory interpretation material (also published as a stand-alone book) in a recent Australian Law Journal book review, and attended the celebration as guest of honour. Following his retirement from the High Court last year, Mr Heydon was appointed to lead the Royal Commission into Trade Union Governance and Corruption, with findings due by the end of 2014.