Introduction
The constitution is the highest authority in many nations of the world including Australia and should be adhered to the latter. The judicial systems of these nations respect the constitution. However, in some situations, interpretation of the law is vital as some laws are ambiguous or absent. This essay shows that it is legitimate for the judges in Australia to engage in judicial activism.
Judicial activism
Judicial activism is the philosophy indicating that in some cases, judges should be allowed to construe the constitution in such a way that it reflects contemporary conditions and values. Liberalism, which is a belief in expanding the power of the government by construing the constitution broadly in order for it to be used to exact issues, supports this (Magleby).
Judicial activism occurs in a case when a judge decides on a case that is based on political or personal ideology or by giving in to pressure from special interests instead of sticking to the previous guide or the constitution. In a system with a separation of power, judicial activism disregards it and makes a new regulation that affects the country wholly instead of settling a specific case being tried (Holetzky, par. 1). In the government systems of many nations of the world, legislation is never done by the judiciary because it is not elected but only appointed. Therefore when judicial activism occurs, this can be referred to as the usurpation of power meaning that justice overrides the court’s jurisdiction or does create a judgment that diverges from jurisprudence, common law and generally the constitution. It can include a case whereby judges override existing laws or make certain doctrines legal without any support or precedent. This situation recreates or undermines policy (in most cases social policy) (Holetzky, par. 2).
Some cases cannot be heard through judicial activism. This is because they are not addressed in the constitution. A good example is an abortion or same-sex marriages that can only be decided by the people and the states otherwise they have to be included first in the constitution so that judicial activism can be applied (Holetzky par. 3-4).
The Common Law in Australia
This common law is used in several countries like the United States, Canada, Australia, India, Malaysia, and New Zealand. Common law is the system of law that was developed in England. It contradicts the system that was derived from the Roman law (often regarded as the civil law) that is operational in South America, Europe, and Japan. In the UK, judges who operated in the courts that had been created by the king established common law. The reason why it is referred to as the common law is because it established one law that was common to the entire British kingdom. The law was set by King William who together with the chief landowners wanted to strengthen their hold on the kingdom to run it smoothly (Craig, par. 1-3).
In the separation of power principle, the judiciary should always be independent of both the legislature and the executive. However in the Common law system, the judges make sure that the laws that have been made by the legislature have been obeyed. However, when new situations arise and values undergo a change, justices and judges can decide the issue differently. When the judge decides a case strictly according to a precedent, it may appear like an injustice. This is where the judicial activism came about whereby even if it is not the duty of the judges to make a law, they can use the law to fit in a new situation. In Australia and the United Kingdom, other parts of the common law have become very compound, forcing the legislature to either replace them or reform them (Craig, par. 4-5)
In Australia, the common law has in the recent past overlaid by stature and it exists in recent times as a weakened form. This, therefore, indicates that the common law is not what it used to be. The purpose of common law was to protect people against the ever-expanding and overreaching power of the government (Cooray, par. 19-20).
Judicial precedent
The doctrine of judicial precedent which is also referred to as stare decisis describes the fact that in the hierarchical structure in courts, any decision made by a higher court is binding on a lower court of that hierarchy. In the explanation, this means that judges should check to see whether a similar case had been handled by any other court before. If either a higher court or one of an equal status set the precedent, the judge would be obliged to abide by the rule that was established in the previous case. However, if that precedent was from a lower court, the judge should consider it afresh but now follow the precedent. This means that decisions by higher courts should remain binding on lower courts (example essays, par. 1&2). The advocates of a strict view of precedent in Australia state that the continuity, consistency and predictability that results from sticking to precedent is important in maintaining public confidence in the work of the Judiciary and the rule of the law (Kirby p. 2). However, one Australian Judge stated that he saw a great danger of injustice if there is high rigidity in adherence to the precedent. Australian law is said to rest on the decisions that have been by the country’s lawmakers and the judicial courts and also upon the “expression, application and development “of the precedent, with the Australian high court at the top of the system (Kirby p. 3).
Judicial Restraint
This is always seen as the opposite of judicial activism. It is a theory that discourages the judges from exercising their power. This means that judges should refrain from ignoring laws unless, of course, they are contrary to the constitution of the land. A jurist is required to sustain the law as much as possible. Jurists following this theory usually respect the judicial precedent (Eastern Michigan University, par. 1).
Pros and Cons of Judicial Activism in Australia
Pros
People who advocate for judicial activism argue that it allows for a “more fluid constitution.” They state that those who came up with the constitution were not in the position to foresee the state of the future government and thus judicial activism allows the ideas that are in the constitution to be shaped without overly limiting the contemporary legislation (Uiowa, par. 3). The justices come to realize that those framers never thought of everything and so as the time elapses, new situations come up and the constitution needs either to be interpreted to suit that situation. This means that judicial activism is very necessary for such a situation (Uiowa, par. 4).
Cons
On the other hand, judicial activism has been criticized as allowing adrift from the actual constitution, creating a kind of a constitutional crisis (Uiowa, par. 3). The opponents of judicial activism also argue that it contradicts the theory of judicial restraint and that the justices and judges should stick to the constitution “as they are no better than the framers” (Uiowa, par. 4). The detractors of the system have also claimed that it usurps the power that belongs to the branches of the government (that have been elected) and thus it becomes an enemy of democracy and the rule of the law. This argument has the claim that no unelected branch of the government such as the judiciary should overrule the policies that have been made by people’s elected representatives in the absence of a constitutional crisis (Hart).
Heydon (p.1) has stated that judicial activism in Australia impairs both the firm grip on the applicable law and the total probity and as a result becomes destructive to the rule of the law. He further gives two types of completely illegitimate pressures that drive judges to move away from probity and therefore evidencing judicial activism. One of them is the need to taint judicial decisions with personal opinions on every issue and the second is the wish to state the law (applicable) in a manner that is entirely unblocked by its former state, with the perception that it should be different (Heydon p.1).
Conclusion
From the conclusion, it is vivid that when the law is interpreted by Australian judges in a way that does not contradict the constitution, then such judicial activism is legitimate. This is because the constitution was framed without understanding the changes that would take place in the future. However, in a situation when the judges would use their personal opinion to decide a case and in the process create constitution crises; this would be illegitimate as the constitution is the highest authority in Australia. Though judicial activism is justifiable in specific situations, judicial restraint should also be observed so that democracy can be adhered to. In situations that arise and are not in the constitution, it should be the work of the legislature to amend it and add the law.
Work Cited
- Craig, Jenny et al. Law and Rights: Common law. Updated 2008.
- Cooray, L. The Australian Achievement: From Bondage to Freedom. 2008.
- Eastern Michigan University. Fundamentals of Judicial Philosophy-Restraint.
- Exampleessays. Doctrine of Judicial Precedents & its Hierarchy of Courts. 2009. Web.
- Hart, John. Democracy and Distrust. Cambridge: Harvard University Press, 1980, Chapters 4-6.
- Heydon, D. “How judicial activism results in the death of the rule of law in Australia.” On line Opinion, 2003: p.1. Web.
- Holetzky, Sherry. What is Judicial Activism? Wisegeek. Updated 2009. Web.
- Kirby, M. Precedent- Report on Australia. International Academy of Comparative Law Conference, 2006, Utrecht, Netherlands.
- Magleby, David et al. Government by the People. 22nd ed. Upper Saddle River, NJ: Pearson Prentice Hall, 2008.
- Uiowa. Judicial Activism. Updated 2006.