Should Australia’s Judges Resign?

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Abstract

Should judges who are required to apply law that infringes human rights resign, rather than participate in an unjust legal system? This question is relevant to Australia because of the scope that the Constitution affords to Parliament to enact legislation that is contrary to internationally-accepted human rights norms. This is particularly the case in relation to liberty of the person which can be abrogated without judicial authorisation in a wide range of circumstances and which, in the case of immigration detention, can be indefinite. The question of whether judges should resign was the subject of academic debate during the apartheid era in South Africa. The particular focus of that debate was the moral responsibility of judges in the face of legislation authorising detention without trial and the psychological harm detention inflicted on detainees, a question which also confronts judges in contemporary Australia. The conclusion in South Africa was that resignation would, at best, be of symbolic effect. However, as an alternative to this, judges have open to them the option of refusing to apply such legislation by developing a common law bill of rights. Theoretical justification for this could be based upon a restoration of the common law to the position as enunciated by Coke CJ in Dr Bonham’s Case, in which it was held that the courts had the power to refuse to apply Acts of Parliament contrary to ‘right reason’. An alternative justification could be derived from the new understanding of the rule of law emerging in the United Kingdom, to the effect that the doctrine requires not only that the law conform to formal rules of validity but also that it should comply with external human rights norms. Under this approach, the rule of law imposes on the courts a duty to restrain Parliament if it enacts oppressive legislation. This article argues that such a course should be adopted by courts in Australia, thereby enabling judges to resolve the moral dilemma presented by legislation that infringes human rights.
Original languageEnglish
Article number1
Pages (from-to)1-35
Number of pages36
JournalCanberra Law Review
Volume18
Issue number2
Publication statusPublished - 22 Mar 2022

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