17 K.C.L.J. 1 (2006)

handle is hein.journals/kingsclj17 and id is 1 raw text is: (2006) 17 KCLJ 1

JAMES ALLAN*
PORTIA, BASSANIO OR DICK THE
BUTCHER? CONSTRAINING JUDGES
IN THE TWENTY-FIRST CENTURY
I HAVE RESISTED the temptation to entitle this article It's the Vibe, Man. But it will
become plain, as I go on, why I was tempted.
Let us begin by imagining a provision in a bill of rights that reads as follows:
The duly elected, democratically chosen government shall be subject to what-
ever restrictions and limitations as are deemed reasonable and appropriate, from
time to time, by a majority of judges of the highest court in the land.'
This imagined provision makes several matters explicit. Firstly, it is clear that the judi-
ciary is to have the last word. They are the ones who will decide what laws are reason-
able and justifiable. In other words, a non-elective process is in place to scrutinize
and   when it is felt appropriate  to override what the elected legislature has done.
The second matter made explicit by our imagined provision is that the restrictions
and limitations on what the elected legislature and government can do are fluid
and evolving. The judges are to ensure that the legislature is held to a standard that
keep[s] pace with civilisation2 and is progressive;3 it is a living tree,4 constantly
evolving5 and keeping abreast of changing social values.
 Garrick Professor of Law, The University of Queensland. An earlier version of this article was given as the
author's Inaugural Lecture for the Garrick Professorship of Law in July 2005. The author wishes to thank
the following people for their generosity and kindness in reading and commenting on that lecture: Larry
Alexander, David Campbell, Tom Campbell, Peter Cane, Andrew Geddis, JefFey Goldsworthy, Jack Hodder,
Mark Henaghan, Richard Kay, John Smillie, Adrienne Stone, Adam Tomkins and David Wingfleld. He would
also like to thank the two anonymous referees for their helpful suggestions. And he would especially like
to thank Grant Huscroft, who read two earlier versions of this article and made various helpful suggestions.
Thanks, too, to Jessica Arscott for help in checking and locating some of the following footnotes.
1. This is a reworked version of the hypothetical provision mooted by Justice Antonin Scalia in Romancing
the Constitution: Interpretation as Invention in G. Huscroft and 1 Brodie (eds.), Constitutionalism in the Charter
Era (London: LexisNexis, 2004), 341.
2. Ministry of Transport v Noort [1992] NZLR 260 (CA), 271 per Cooke P (as he then was).
3. See, for example, Peter Hogg, 'The Charter of Rights and American Theories of Interpretation (1987) 25
Osloode Hall Law Journal 87, 101 inter alia and Peter Hogg, Constitutional Law of Canada (3rd ed., Toronto:
Carswell, 1992), 413.
4. Edwards v Canada (Attorney-General) [1930] AC 124 (PC), 136 per Lord Sankey. For an excellent history of the
living tree idea see Grant Huscroft, A Constitutional 'Work in Progress'? The Charter and the Limits of
Progressive Interpretation in Constitutionalism in the Charter Era, above nl, 413 ff.
5. Al-Kateb v Godwin (2004) 208 AER 124, para. [170] per KirbyJ.

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