Judicial Activism in Australia Courts

The dangers of judicial activism in Australia far outweigh its advantages because of several reasons.

            Judicial activism is the instance whereby the courts or the judiciary affects the status quo of the prevailing legal system by preventing the implementation of certain legislations on grounds that they are unconstitutional (Pudlow, Jan, 2005). It also means the extent to which the supreme courts decisions may affect the content, meaning and the applicability of the legal system in the country. For example, the judicial precedents from the High Court of Australia may or may not lead to good policy laws which promote a fair democratic society.

            Judicial activism may help the government in deciding on an issue which has not been fully provided for by the existing statutes and the existing legal policy frame work. For example, there may be a situation where by an issue arises which requires an immediate decision to be made and there is no clear policy to address it (Root, Damon W., 2005).

            The solution lies with the judiciary to make their ruling on the matter .Here judicial activism act by the judiciary could be an advantage to the whole country of Australia. This is because the normal parliamentary sittings cannot produce the laws at such expedient haste.

            The judicial activism can also be of benefit to Australia by acting as a mode by which the Australian existing laws can be expanded and enriched. This is because there are some aspects of law which requires expert counsel and the judges may be able to handle such matters in the context of their technicality.

            This is an advantage to the Australian public especially if the laws so made are intended to promote democratic ideals and public interest .Another benefit of judicial activism in Australia is that it may be used by the existing political government to pursue matters which are of policy interest .For example, the political leaders may invoke the support of the judiciary to help them create supportive legislation which can help the political government achieve its policy objectives.

            This is by means of passing laws which resonate well with those on the parliamentary legislative policy. This is because the parliament may not easily reach certain legislations without the support from the judiciary (Pudlow, Jan, 2005).The judiciary may frustrate the parliament of Australia by differently interpreting the laws which parliament has passed or the judges of the High Court may assist the government by upholding proper interpretation and implementation of the legal proceedings to suit the political needs of the elected government which is in place.
For example, if the government feels that it should be conservative in some matters then it can invoke the support of the Judicial activists in order to help it meet its political objectives (Pudlow, Jan,2005) .Also if the elected government requires some quick policy formation frame work which could be liberal but cannot easily be arrived at in the ordinary parliament due to high polarization and divisions in the parliament then the leadership or elected executive can uphold solutions to such trivial legislation by invoking the judicial activism.

            So judicial activism can be really of much help to the government to fix some political problems which require to be immediately addressed.

            Another benefit of judicial activism is that it can be the only valuable source of authority in the event of a political stalemate by acting as the sole and most neutral authority.

            For example, if there is a problem on the election outcomes and there are standoffs as to the clear winner as in the case of a tie on the votes tallied. The judicial activists will be looked upon to identify similar solutions to such a problem in other countries and make rulings based on such which were made by those countries .But the Australian constitution have to recognize those constitutions before the stalemate like that of Great Britain or other Common Wealth countries(http://pandora.nla.gov.au) .

            This activist role would therefore have brought up an expedient solution to constitutional problem.

            However there exists a problem as to the authority and extent of legality of the decisions of the judges. For examples, their decisions may some times undermine the constitution thereby systematically reducing its intended purpose to the Australian public. However, there are arguments that the judges should have limited authority in affecting the constitutional direction of that country because they are not directly elected by the public hence should not spearhead policy and constitutional direction.

            Hence there have been attempts to protect the judicial activist interference with the existing legislative laws and the constitution by the activist  attempts by the judges .This is an effort to make the judges to keep from interpreting the law out of context and outside the constitution and also to keep the activism of judges from watering down the existing legal and constitutional system .It  is an attempt by some judges to avoid  interpreting the law out of the context of the constitution but within the existing legislative system of the country and diverting the constitution and the meanings.

             There are different aspects of judicial activism such as (Kermit Roosevelt, 2006):

            Interpretative fidelity which is an aspect to which the constitutional order is interpreted in the contrast to the actual intended meaning by the constitution drafters or the apparent implication of the terms used.

            Majoritarianism. this is judicial activism aspect of the level to which the policies of those democratically elected individuals are overturned through judicial means.

            Interpretative stability is aspect to which the earlier decisions, constitutional interpretations and policies are altered by the court decisions.

            Specificity of policy. This is another aspect of judicial activism whereby the main consideration is on the extent to which the courts decisions establishes policy itself, against leaving the decision to other agencies.

            Another aspect of judicial activism is the substance or democratic process whereby the main concern is the level to which judicial activism make substantive policy instead of acting to preserve the existing political process.

            Due to the above implications we find that judicial activism is a matter of concern to many stakeholders. It therefore has its supporters and detractors. Detractors have several reasons against the judicial activism which includes the following;

             The Australian politicians argue that the activist judges may sometimes propagate certain laws which promote and preserve the powers and rights of applicable for the common wealth at the expense of the country.

            The activist judiciary is seen as being too bureaucratic and conservative establishment. Sometimes when politicians busily make laws expecting to create some meanings in those laws and in the contrary the lawyers end up creating a diversely different meaning.

            This shows that there is a big problem of interpretation of law in the manner of application of meaning. The judges apply the law as it should be and not the law as it is made by the constitution or legislation. There is concern in the Australian government like in many other countries that the judiciary may sometimes operate against the rule of the law by insisting on their sole power of resolution as far as the final interpretation of the laws statutes (Rory Leishman, 2006)

            They reason that the democracy or rule of law cannot be upheld whatsoever when all or any thing said by the judges are taken to be law. It is feared that the judges are continually promulgating strange judicial laws which are in contrast to the norms, traditions and the feelings of the general public.

For example, the judges are fond of passing legislations like the Act legalizing same sex marriage in Australia.

            The Supreme court through judicial activism in Australia has acted as an impediment on the way of government or the congress in their efforts to establish the necessary regulatory public policies, legislations and necessary statutes (Paul O. Carrese, ,2003)This is always by means of the supreme courts sometimes restricting policy development. Some also argue that it distorts the democratic framework as the judges are not directly elected by the democracy yet they participate in the legislative issues by adding or limiting it. An example is the famous Australian high court landmark ruling of 2000 in which the bench allowed a woman to marry another woman .The said woman had decided to become a ‘man’ and decided change her name to Kevin and proceeded to marry another woman called Jennifer .The High court ruled that “man’ was not restricted to biological aspects alone but could mean other things.

            The many advantages of judicial activism are as follows

            That if applied with restrain to the law it can help resolve some trivial issues which demand quick solution. For example, there is an issue which is not properly addressed by the constitution, and then the activism of the judges may be the only way to bridge that gap.

            judicial activism can enable the development of the legal system at the requisite pace which the parliament cannot offer .Also in support to this the judicial activism is the reasoning that it serves as in helping with the renew of the law and not necessarily with the destruction of the existing statutes and that the courts must just strive to maintain the law in their rulings.

            Some of the proponents of activism by the judges argue that it can help give a direction which is not as much eccentric as those given by the political parliament which always involves several interest groups. It acts as a possible starting point or catalyst for the construction of a new system (Greve, Michael S, 2003).

            The proponents asserts that the judges mainly apply those decisions which have already been passed by other judges and that it is easy to repeat the sections of decisions in law which may appear out of touch with the public through these judicial activists’ roles.

            There is argument that the activism under rates or demeans the the three structural arms of government .More so there is a contention that only parliament is constitutionally empowered to enact laws as they draw this power from the elections .While the discretion of the judges and judicial decisions must be limited and controlled and that because the judiciary is not a directly body its decisions could be illegal.

            They further claim that activism can be well used to bring clarity as far as interpretation of law is concerned. This they argue is arrived through the use of judicial doctrines of judicial interpretation like state devises whereby the judges make the ruling on a case according to the facts that are available.

            Also they use the doctrine of ejected generic whereby they rule a case by looking at and taking into account the meaning of the initial words and taking the words that follow as being supportive to the main words.

Conclusion

            The concept of judicial restraint means opposite to the activism because it entails the attempts by some practicing judges to control and ensure that their rulings are as devoid of activism as possible (Greve, Michael S, 2003).

            The judges try to follow the true meanings of the law and strive to uphold honesty to the law and refuse to apply rulings in a way that could be unconstitutional and against the rule of law.

            So for the foregoing reasons the demerits of judicial activism far outweighs the advantages because Australians find that if too much liberty is placed on the  judges to the making of judicial legislation then there will be several risks which they will be getting themselves to.

            The judicial precedent as a form of legislation is prone to abuse by any group of judges with some minority interests. This has come with the results of the High court of Australia passing the Act which legalized homosexual marriage in 2000.Also the judges may use their judicial offices to support some politically expedient causes like passing some laws to gain some political interests.

            Another reason is that the judicial activism can be used by the bench to frustrate the efforts of parliament and the government in addressing an issue of public policy .For example, the Australian High Court may make rulings which can render some existing legislations to be rendered null and ineffective by their decisions and rulings (Greve, Michael S, 2003).

            The judges may prevent the effective operations of the constitution by undermining it or through the rejection of some of its parts to fit what they feel is expedient and necessary.

            The structure of the government can therefore at the whims of the judicial process and their judgments allow a situation where a small clique of people with their own cunning interests may use the judicial branch of the government to thwart the existing or emerging progressive legislations and even some aspects of the constitution which they may desire to successfully repeal (James B. Kelly, 2006). So it is a dangerous thing for judicial activism to be encouraged in the Australian society.

            The Australians may strengthen other systems and arms of government and impose the relevant restrictions on the judicial system to avoid extreme levels of judicial activism and to preserve their laws and maintain stability, order and good universal moral standing.

            By so doing the Australian country will prevent unnecessary stalemates as far as the standards, quality and value of their laws are concerned. Also they  will benefit from smooth implementation of public policy will be gained through a reduction in the level of judicial activism and its resultant resistance to some legislation and policies which are aimed at supporting the public peace

            In order to avoid the pitfalls of judicial activism, the government should make it a matter of policy to check on character and personal history of the judges in the recruitment stages. The law should be clear on the roles which the judges should be playing for the society and the law should be upheld and those judges who seem not to operate in the public interest should be stopped through an elaborate system (Kermit Roosevelt,2006). For example, judges who prevent the proper prosecution of corruption cases and other social ills should be stopped from administering the judicial system .A system should be put in place to restrain judges from the attempts of manipulation and selfishly altering the laws.

References

            Kermit Roosevelt (2006). The Myth of Judicial Activism: Making Sense of Supreme Court Decisions .Yale University Press Publishers.

            James B. Kelly (2006). Governing With the Charter: Legislative And Judicial Activism And Framer’s Intent (Law and Society Series) .UBC Press Publishers.

            Rory Leishman (2006). Against Judicial Activism: The Decline of Freedom And Democracy in Canada .McGill-Queen’s University Press Publishers.

            Root, Damon W. (2005).Unleash the judges: the libertarian case for judicial activism.

            Pudlow, Jan (2005). What exactly is ‘judicial activism?’ Justices worry it is just becoming a catchphrase to describe any decision someone doesn’t agree with.

            Greve, Michael S (2003). A Conservative View of the Court: Getting beyond ‘activism’ and ‘restraint’. National Review.

            http://pandora.nla.gov.au/tep/10130. Assessed on 23rd April, 2009.

            Paul O. Carrese, (2003). The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism .Chicago: University of Chicago Press.