Judicial legislation in Australia too

The U.S. Supreme court is notorious for this: Making laws instead of applying them. They refuse to apply clear provisions of the constitution (such as a ban on racially discriminatory legislation) and invent rights (such as a right to abortion) that are nowhere mentioned in the constitution. Our judiciary is less politicized so has been less prone to such "legislation" but, against much precedent, they have just abolished the historic right of a wife not to testify against her husband

The High Court this week granted the judiciary an increase in its powers - in particular, the power to force a wife to dump her husband deep in the doo-doo. We learnt on Wednesday that what had been known to the common law for 200 years as "the claim to privilege against spousal incrimination" was really a figment of our collective imagination.

The case revolved around misdeeds of a Brisbane accountant, Ewan Stoddart, prosecuted by the Australian Crime Commission on an allegation of tax fraud. Ewan's wife of 20 years, Louise Stoddart, provided part-time book-keeping services for her husband's practice.

Mrs Stoddart was called as a witness by a commissioner for the ACC and asked "whether she was aware of invoices prepared at the premises of her husband's practice for services provided by other entities".

Mrs Stoddart's counsel sought an injunction preventing the ACC from continuing that line of questioning, on the basis that she could not be required in any tribunal to incriminate her husband. The ACC defended the injunction application, arguing that no such doctrine was known to Australian law or that its effect in this case had been extinguished by the statute creating the ACC.

The Federal Court upheld the application of Mrs Stoddart as a clear example of spousal privilege. On appeal to the High Court, French, CJ, and Gummow, Crennan, Kiefel and Bell, JJ, overturned that decision. The High Court did not find the notion was no longer relevant, or that its detriments outweighed its benefits or that it was extinguished by statute. Their honours took the rather magical step of finding that it never existed.

The dissenting judgment of Justice John Dyson Heydon is an absolute ripper: on the net, austlii.edu.au/au/cases/cth/HCA/2011/47.html. Heydon is a "black-letter lawyer", eschewing adventure, determined to render the law as it is, resisting the temptation to correct perceived defects in Parliament's conscience.

Canadian by birth, he graduated from Sydney University, earned a bachelor of civil law and masters of arts from Oxford on a Rhodes scholarship, was made a fellow of Keble College, Oxford, teaching international law, then was a professor of law at Sydney University at 30 - its youngest ever.

He co-authored the second Australian edition of the bible of evidence law, Cross on Evidence, in 1980, and sole-authored the later five editions, most recently in 2009. He is one of the editors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies - a global authority on two of the most complex and demanding areas of the law outside tax - evidence and equity.

Heydon dissects the winning argument, line by line, blow by blow, with brutal, relentless efficiency, leaving a smoking pile of intellectual ruin. He then proves that spousal privilege is (or was, until this judgment) not merely a rule of evidence but a substantive rule of law - in the process furnishing a dozen substantive reasons why the doctrine is in the interests of justice and comity.

(I can just imagine the atmosphere on the first night home after a couple of years cohabiting with the tattooed gangs in Silverwater Jail for a white-collar crime, convicted on the wife's evidence. "How was your stay, honey? Were they nice to you?")

Heydon takes us on a panoramic tour of the evolution of a legal doctrine from its seminal dicta by Justice John Bayley on the King's Bench in R v The Inhabitants of All Saints, Worcester (1817). He writes with the assurance of a master of our law and language. Noting that the force of a precedent is influenced by the stature of its author, he provides a mini-biography of Bayley, who also penned legal texts that ran to multiple editions.

Like an archaeologist handling artefacts with immense care and respect, he individually cites 90 editions of the 13 weightiest evidence treatises, in Britain, the US, India, Australia and New Zealand, which is more than 160 years of legal precedent, concluding dryly: "The submissions of the appellant entail an assumption that the body of legal writing from 1817 to 1980, surveyed above, represents a massive deception of the reading public - judiciary, practitioners and students - stemming from a general self-delusion on the part of nearly 70 writers and editors over nearly two centuries. With respect to the appellant's position, it is not possible to accept that assumption."

Justice Heydon lost and Mrs Stoddart lost and, presumably, publishers of our common law have urgent need of a big bottle of liquid paper. I don't presume to give my readers legal advice but, when your nearest and dearest next asks, over a glass of red, "What's on your mind babe?", it may be prudent to consult a solicitor.


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