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19 U. Notre Dame Austl. L. Rev. 1 (2017)

handle is hein.journals/undauslr19 and id is 1 raw text is: DO JUDGES MAKE LAW?* THE HON JUSTICE MICHAEL BARKER'' Unusually, for me at least, I would like to commence this lecture with a reading from Scripture; more particularly from what Christians call the Old Testament - from Judges 4:4 and 5: And Deborah, a prophetess, the wife of Lapidoth, she judged Israel at that time. And she dwelt under the palm tree of Deborah between Ramah and Bethel in mount Ephraim: and the children of Israel came up to her for judgment.' It seems this involved a personal approach to judging, something that was common in those distant times in both the Jewish and Arabic worlds. Recently, I was at the Alhambra in Granada, the palace and fort of the Moorish rulers of Spain for hundreds of years until Queen Isabella I and King Ferdinand II expanded their northern and eastern kingdoms and expelled them from Spain in 1492. I found myself standing in the famed Court of Justice. Here, the ruler is said, like Deborah, to have personally heard and resolved the disputes of his subjects. From such direct decision making by rulers and judges, the expression palm tree justice seems to have grown, especially during the 1960s in England. It was an expression I became familiar with when I commenced law school in 1968. No real judge would dispense palm tree justice, was the clear message. In making a judgment, he or she would always follow precedent, apply settled legal rules, and never appeal to broad community principles or values, or simply decide where the justice in the dispute appears to lie. My topic for this evening's lecture concerns this debate about judicial method. I have sought to reduce it to the question, Do judges make law? Do they simply legislate from high, or under a palm tree; or do they, in a more mechanistic way, simply seek to divine the resolution of disputes by identifying settled principles and applying them to the facts of the case at hand; * This article is a slightly edited version of the David Malcolm Memorial Lecture 2017 delivered by Justice Barker at the Notre Dame University Law School in Fremantle on 26 October 2017. ** LLB(Hons) (UWA), LLM (York University, Canada); Justice of the Federal Court of Australia, Perth. 1 The Holy Bible, King James Version (Thomas Nelson, 1984) Judges 4:4-5. 1

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