The Dangers of Judicial Activism in Australian Courts

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‘The Dangers of Judicial Activism in Australian Courts Far Outweigh any Advantages’. Discuss this statement. Judicial activism is described in Black’s Law Dictionary as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent. ” (http://dictionary. sensagent. com/judicial+activism/en-en/).

Judicial activism has a definite place in Australian Law as I will demonstrate below. Our social, economic, education and employment is ever changing as we move into our future, there are new advances in technology, there are new ways to commit crimes and there are new ideas that need to be embraced. Changes in our laws around our advancing society need to be carried out in a responsible and clear manner. I will outline below the advantages and disadvantages to judicial activism below and show that the advantages far outweigh the disadvantages.

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There are two schools of thought when debating the appropriateness of Judicial Activism. The first is that it occurs when judge uses the law to achieve some political goal that the judge may believe is important. Even if this occurs when the ruling is for the good of the people as a whole, it still remains that the decision is made outside the realms of the law as it stands. The second thought is when a new case; or case that is outside the realms of any case that has occurred before, is not perceived to fit within any law or precedent set previously.

When it is time for ruling the judge must decide whether to make it fit best to one of the laws that are already set or to make a ruling of his own, inturn interpreting the law that way he/she perceives it and making a law rather than applying a law (Burns, 2006). Both methods described above are cases of judicial activism. There are advantages and disadvantages for judicial activism as I will outline below. Traditionalists argue that judges should always simply implement the law as it is written and never venture interpretations of their own are asking too much of the written word. Betts, Date Unk) One disadvantage to judicial activism is that the judges in Australian courts are appointed not elected. This becomes a disadvantage because they may not be representative of the communities’ views and may not have been who the community trusted to represent them. The majority of the current Judges in the High Court of Australia come from privileged backgrounds and they are all male, thus possibly not giving them a comprehensive understanding of what the real needs and wants of the Australian public as a whole are (Chisholm & Nettheim, 2007).

Another disadvantage is that the bias that might come from the judges when making a decision regarding a particular case. Australians live under a federal constitution. These constitutions mandate the existence of the courts designed, among other things, to protect he public rights and punish public wrongs. As expected, these legal facts have consequences of the way in which we are governed (Finkelstein, 2006). We would all like to think we are protected by these laws that our country is governed and ruled by, however at times it would seem that these could be deviated from.

The final disadvantage I will discuss is the precedents that are set by different judges, making decisions involving a particular case, and how and if these will be followed in the following years as times and society evolves; if they will remain relevant. If the precedent laws are not followed, the law can become less certain and less predictable, and it would seem an unfair system if it was to depend on which judge is deciding on the day as to what result might come from the case (Chisholm & Nettheim, 2007).

Justice Heydon, who currently sits on the bench at the High Court of Australia, has “spoken out against ‘judicial activism’ and its ‘illegitimate’ use of judicial power to further ‘some political, moral or social programme’. He has gone so far as to equate ‘judicial activism’ with the ‘death of the rule of law” (Hamer, 2004). Justice Hayne, who sits alongside Heydon has expressed a similar view, “describing ‘judicial reticence … as a fundamental informing principle for every judge at every level in the judicial system” (Hamer, 2004).

In respect to the disadvantages above, firstly while the judges are appointed and unfortunately at this time are all male and from privileged backgrounds, it is a law that the judgments that are made are always made public, the judges must be seen to be taking the law to careful consideration and the decision is always open for legislature overruling (Chisholm & Nettheim, 2007). The second disadvantage, as noted above, being biased opinions having bearing on the ruling made.

A creative model of judicial decision making accepts that neither the law nor the facts of all case are neutral and clear. “Judges sometimes need to make interpretations of the law and different conclusions dependent of the choices they make stemming from values that they hold” (Burns, 2006). However, in accepting this model, this is not necessary activism, more interpretation of facts as, however judges in this instance must still work within the framework of existing law and precedent (Burns, 2006).

One of most prominent judicial activists in the current High Court is Justice Michael Kirby (Hunter, 2006). He is a well known Judge that has many times interpreted the law when a need has arisen. He writes “So long as law is something more than mere rules, so long as it speaks of deep values and human aspirations, of human dignity and fundamental rights, there will be people called judges who have the responsibility to express and apply the law and, in new circumstances, to push it forward and adapt it in a principled way” (Kirby, 2006).

In my introduction I have written that activism holds a definite place in our society as long as it’s ‘carried out in a responsible and clear manner’. It also needs to be noted then, that even as on the most prominent activists, Michael Kirby also writes “we need a middle ground that reflects the pragmatic character of the Common law in contemporary times. The extremes of unbound judicial creativity and invention will be tamed.

But so too will be the extreme of mechanical application of old law without considering the context in which it must operate and its justice and conformity to basic principle” (Kirby, 2005). This quote is important, as it supports that while activism is alive and well in the Australian Justice System, even the most prominent activists are accepting that there is a time and place for it, and it should only be used if the need arises, it is not just for political or individual misuse.

One landmark decision in recent history and a prime example of judicial activism was that of Mabo v Queensland in 1992. “It reversed the decision of the Judicial Committee of the Privy Council in the 19th century which had affirmed that all native Aboriginal interests in land in the Australian continent had been extinguished by the acquisition of sovereignty over Australia by the British Crown and the accession to the Crown of the radical title in land throughout Australia by reason of that sovereignty”. Kirby, 2006) That decision reversed a long held rule of the Australian common law to the effect that, on the British acquisition of Australia, all native title to land anywhere in the continent had been extinguished at the moment the British flew their flag on Australia soil. (Kirby, 2005) “A primary premise of the old law, that Aboriginals were universally nomadic with no interest in land, was shown to have been seriously wrong” (Kirby, 2005).

The Mabo v Queensland is a notable example of Judicial activism being used in a positive way, an example of our views, thoughts and opinions changing since laws were made and an example of the laws that were made decades ago not being correct in society today’s way of thinking. Although the decision was not supported by Australia implicitly, the majority would now support that this was the right or just thing to do. Another example of judicial activism used in a forward thinking manner is in an article by Judge Roy Ellis.

He describes a process whereby the judge is involved in case managing a child abuse case, making sure the child is comfortable, feels heard and also helping the child trust the adults in what must be a scary and daunting situation. The Judge also addresses the child’s court attendance and has the power to reduce that or give other methods for the child to testify. This example, while different from the examples in the above text, demonstrates another avenue the judicial activism, and that forward thinking can make a positive difference in the court processes (Ellis. R, 2005).

In supporting judicial activism and making a case for the advantages for outweighing the disadvantages, it is noted that above I have named some the disadvantages and some advantages. It is also noted that the disadvantages, while relevant, can be neutralized by outlining the advantages that can be seen to almost negate those points. While a justice system that is fair and predictable is important to the people of Australia, it is also true that “Uncertainty can be minimised, but it is not possible to provide an unambiguous and specific set of laws and regulations to cover every possible eventuality.

A degree of interpretation of legal codes and formal constitutions is inevitable. If the law is prefaced with a clear statement of intentions, courts can be provided with a framework. ” (Betts, 2006) In the absence of clear guidance from the legislation, some judges (including Michael Kirby) assume an activist role enthusiastically, claiming that ‘creativity’ is ‘the very genius of our legal system’ (Betts, 2006) Reference List Black’s Law Dictionary, http://dictionary. sensagent. com/judicial+activism/en-en/, viewed 06 Apr 09 Burns, K 2006, ‘The role of the judiciary : passive or active? LEGALDATE; 18 (2) May 2006: 4-6 Betts, K. Judicial activism, immigration and the one child case, People and Place, Vol 5, no 3 Chisholm, R, Nettheim, G. 2007, Understanding Law, Chatswood: Butterworths. Ellis, R 2005, Judicial activism in child sexual assault cases, http://njca. anu. edu. au/Professional%20Development/programs%20by%20year/2005/child%20conference/Ellis_Roy. paper. pdf, Viewed Apr 20 2009 Finkelstein, R 2006, The role of the judge: judicial activism and the rule of law, Flinders Journal of Law Reform, Vol 9 (1) 17-28

Hamer, David 2004, Cattanach V Melchior: [1] principal, policy and judicial activism, University of New England Law Journal, Vol 11 http://www. austlii. edu. au/cgi-bin/sinodisp/au/journals/UNELJ/2004/11. html? query=judicial%20activism%20AND%20australia%20AND%20kirby Viewed Apr 16 2009 Hunter, T 2005, Rule of law, separation of powers and judicial decision making in Australia – Part 2, Bond University, http://epublications. bond. edu. au/cgi/viewcontent. cgi? article=1089&context=law_pubs Viewed Apr 16 2009

Kirby, Michael 2001, Human rights and the exercise of judicial choice [online]. Monash University Law Review, v. 27, no. 2, 2001: (290)-318. Kirby, Michael 2003, Judicial Activism: Authority. Principle, and Policy in the Judicial Method. The Hamlyn Lectures , Fifty-Fifth Series, Lectures 1 -4. ,lecture 3, I Kirby, Michael 2006, Judicial Activism: Power without responsibility? No, Appropriate activism conforming to duty, Melbourne University Law Review, Vol 18, http://austlii. law. uts. edu. au/au/journals/MULR/2006/18. html Viewed Apr 20 2009

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