Judicial Activism

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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.

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...
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