Republicanism, Community Values and Social Psychology: A Response to Braithwaite’s Model of Judicial Deliberation

In recent years, the High Court has moved some distance from a passivist to a more activist approach. Under the passivist approach, judges emphasise continuity with past decisions. For example, Dixon CJ said that judges were limited to reaching results in accordance with accepted legal principles. These principles should not be abandoned in the name of justice, social necessity or social convenience. However, our previous Chief Justice, Anthony Mason, pointed to judges' responsibility to reach just decisions, which are in tune with contemporary society. Decisions such as Mabo and Australian Capital Television have demonstrated a willingness to find new rights, even if this involves some political controversy. While one should not exaggerate the Court's recent activism (nor downplay past activism), it has been sufficient to attract much public comment. This greater emphasis upon achieving just outcomes raises more acutely the question of how judges determine what justice requires, and the legitimacy of such determinations. It is in response to these concerns that Anthony Mason and the present Chief Justice, Gerard Brennan, have suggested that judges do not rely on their personal views concerning justice, but instead refer to community values. This understanding of the judicial role is manifest in judgments: the community's "standards, their values, their circumstances are, to an unprecedented extent, being invoked directly to provide benchmarks of judgment in settling the shape, reach and application of individual rules and doctrines". In Mabo, for example, Brennan J (as he then was) suggested that a failure to recognise native title would be inconsistent with the contemporary values of the Australian people.