ANY DISCUSSION of judicial ethics “must involve a broader and deeper consideration of the nexus between law and morality”, Chief Justice Marilyn Warren said in a recent address to the Judicial College of Victoria Forum on Judicial Ethics.
If this were not the case, the discussion would become one of judicial ethics in the context of the individual conduct of judges. Seeking to “emphasise the opportunities that judges have to engender public confidence, while simultaneously holding up a mirror for society to reflect upon the moral values that it aspires to,” she said she would take a “broader view” of what judicial ethics in the 21st century might entail.
Warren said it was “beyond dispute” that many legal doctrines are informed by moral considerations, and such values are most easily identified when declaring fundamental human rights.
“Brennan J’s classic judgment in Mabo v Queensland (no. 2) illustrates this point. In holding that an ‘unjust and discriminatory doctrine’ that refused to recognise the rights of indigenous people had no place in Australia, his Honour recognised the emergent international values and standards that were reflected in the ‘contemporary values of the Australian people’,” she said.
“Judges are not politicians,” she concluded, but hopefully they could “shape and declare the law to assist society reflect upon the moral values that it aspires to”.
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