Limits on the use of Judges
| Author | F. G. Brennan |
| Published date | 01 March 1978 |
| Date | 01 March 1978 |
| DOI | 10.1177/0067205X7800900101 |
| Subject Matter | Article |
LIMITS ON
THE
USE
OF
JUDGES
By
THE
HONOURABLE
MR
JUSTICE
F. G.
BRENNAN*
The traditional function
of
the judicial process in adjudicating
upon the existence
of
rights and obligations between defined
persons or classes
of
persons will continue
to
be discharged
by
the
judiciary. There are risks involved in an extension
of
the role
of
judges beyond that traditional function. Mr Justice Brennan argues
that these risks
must
in appropriate cases be accepted, otherwise
the judiciary itself
may
become irrelevant to the
community
which
it serves.
INTRODUCTION
In
1972, the English Solicitors' Journal wrote:
The politicians are overdrawing on the capital of the judges' high
reputation for competence and impartiality in reaching conclusions
by the judicial process of reasoning. Each time ajudge
is
misused
by being put up
as
afacesaver behind whose report agovernment
can hide in carrying out apolicy which they shirked adopting
directly, alittle of the long standing esteem in which judges are
held
is
lost and some of their authority undermined.1
The controversy between those who would assign amore active role
to the judiciary, and those who would limit it to the traditional curial
functions
is
ongoing.2Opinions differ within and without the judiciary,
for there are arguments of weight on either side of the controversy.
But
it
is
agreed by both sides that the public interest
is
the touchstone by
which the true solution to the controversy
is
to be found.
Public interest
is,
of course, amany-faceted gem, the brilliance of
which
is
easier to admire than to analyse. One value upon which there
is
general agreement
is
the desirability of maintaining public confidence
in the judiciary, and thereby preserving general acceptance of the
authority and integrity of the courts.
It
is
not an overstatement to say
that public confidence in ajudiciary
is
acondition precedent to an
ordered society and social stability.3
Confidence
is
not easy to describe or to quantify, but it
is
indispens-
able to the efficient working of the judicial system
as
we
know it.
It
is
an attitude of mind and it
is
susceptible to change. Political change
is
a
continuum of shifting confidences. Perhaps the genius of our social
*Judge
of
the Federal
Court
of
Australia and President of the Administrative
Appeals Tribunal.
1(1972) 116
Pt
1Solicitors Journal 149.
2See Right Honourable Sir Leslie Scarman: "The
Judge-A
Man for All
Seasons" (1977) Vol. 267 "Round Talk" 230.
3Freely acknowledged
is
the distinctive contribution the courts make to the
social order. Horowitz, The Courts and Social Policy (1977).
1
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