Judicial Activism in Australian Courts


Judicial activism refers to circumstances that surround decisions made by judges in different states and judicial systems, and the impacts of the judicial systems on different arms of government and the public in general. Judicial activism has been defined differently by scholars though all definitions centers on the judiciary and the judicial decisions that are made. According to the Black’s Law Dictionary, this term can be defined as a philosophy of making judicial decisions where judicial officers allow their personal perspectives regarding public policy and other factors to guide decisions that they make (Roosevelt 18).

Judicial activism has been on the rise especially in the Western world. In those countries, judges increasingly engage in political and social issues. In Australia, judicial activism has become popular in recent times and is widely discussed nowadays. Decisions that are made by judges can be said to have activist attributes when evaluated based on a number of dimensions that they have taken. Such dimensions include the judges’ interpretive abilities, majoritarianism, specificity of policies guiding the decisions, the interpretive fidelity and stability, the democratic process of decision making, and the presence of alternative policymakers (Powers and Rothman 13).

Judicial activism debates center on the assumption that judges assume duties and functions of the legislatures or the executive. However, there is also the issue concerning interference from the executive and the legislature on the functioning of the judiciary. Debate on judicial actions and decisions has become common in various countries around the world. When judicial decisions are discussed, other government arms, such as the executive and the legislature, cannot be left out or wished away. Judicial activism receives support from some people, while the others are opposed to this form of activism (French para. 2). This paper provides a discussion of judicial activism in Australia. The paper brings out both positive and negative aspects that are associated with judicial activism. In addition, the paper will provide a position depending on the arguments that will be presented.

Perspective of Judicial Activism Debates

Judicial activism can be looked at from two perspectives. The first perspective is that judicial activism occurs when judges use law in achieving political goals which they consider to be important. Even though the ruling made it a benefit to the people as a whole, such decisions are still criticized for having been made outside the judicial realms. The second perspective is when a new case that is not in the realm of any case that has occurred is perceived as not fitting within the law that has been previously set. In times of making a ruling, judges decide whether to make a ruling that will fit the existing laws that have already been set the best or independent rulings. This means that judges will interpret the law according to the way in which they perceive it. In this case, rather than just applying the law to a scenario, the judges make laws (Wolfe 5).

The Legitimacy of Judicial Activism

The legitimacy of judicial activism varies depending on the context under which it occurs. It is not easy to legitimize or disapprove judicial activism. It is important to know the context in which the judicial decision is reached before criticizing it (Lewis 71).

Judicial Activism in Australia

Judicial activism has deep roots in the history of the Laws of Australia. Australian institutions, which include the economic, social, as well as academic ones, are fast changing. These changes are facilitated by technology which has necessitated innovations in the way the crimes are committed, and justice and/or judicial decisions are made (Hunter para. 3). In Australia, there are many concerns, controversies, and criticism related to the judicial decision making. All these are based on the point that judicial activism gives room to the judiciary to extend the role it plays in power separation. The separation of powers is embedded in the constitution that guarantees the rule of law. However, the question on whether judicial activism jeopardizes the doctrine of power separation by way of principle, policy, and rule of law remains unanswered. As an instance, a case of Justice Lionel Murphy who was a High Court judge in Australia can be examined. Murphy was very active in his approaches and managed to make sound judicial decisions. In spite of the seemingly well-grounded decisions, most of the judgments that he made were still questionable. His critics pointed that he did not support the judgments he made in a proper legal way. They further pointed out that the judgments he delivered were still influenced by his political inclination and views. In this respect, it is hard to separate politics from the judiciary. Judicial activism is mostly instigated by political inclinations and derivatives (Hunter para. 4).

The question that remains is on whether judicial system in Australia has come to disregard its power in the interpretation of law concerning power separation, or it has just changed, adapting to the political and social landscape of the country (Hunter para. 4). The judicial decisions of courts in Australia are frequently discussed by politicians and non-politicians because of the prevailing instances of judicial controversies. Australian politicians continue viewing judicial mechanisms with divergent interests and hostilities (Hunter para. 4).

Dangers of Judicial Activism

Judicial activism, when looked at from the societal point of view that concerns the progression of the constitution, is considered to breach the democracy. This is because it is not consistent with democratic principles. Judicial activism has led to the rise of a group of judicial philosophers who are taking unilateral positions that define society rather than leaving the issues to be determined by the society. This is also detrimental to democratic psychology. The populist nature of the state becomes altered due to radicalism that arises from judicial activism (Thornton 330).

Judicial activism constraints the power separation values. A number of judges are fond of referring to that value of power separation whenever there is inappropriate legislation, or when the executive interferes with the powers of the judiciary. The principle of separation of power affects both the executive and the judiciary as rooted in the constitution. Thus, it becomes objectionable if the judiciary tries to undermine the legislative power of the executive arm of the government. Therefore, contempt by the courts in reference to the principle of separation of powers can only lead to a corresponding disrespect for the other arms of government. However, this has potentially harmful effects. It is more obvious that the current Australian politicians are viewing the activism of the judiciary with intense cynicism in respect to the commitment to power separation. Another problem that is necessary to take into consideration in this study concerning the examination of this issue is related to separation of power because it seems that this point has an ethical inclination. This issue arises when the High Court and other courts decide to assert the power separation value and deny the intentions of the constitutional interpretations. This is done in a way that is not in line with the constitutional desires as it is expressed by the founders of the constitution. However, the courts are still observed to do similar things disregarding this point. This generates a great inconsistence in the Australian constitutional jurisprudence (Henkel 6).

As a matter of fact, judicial activism has potential social dangers. In an environment that is marked with judicial activism, judges become ill equipped when it comes to discharging major policy roles. Therefore, given that judges in judicial activism often lack for specific aptitude for policy, it becomes more unlikely that the forays of judges in reaching major policies will be successful. This is because judges require more experience and the practical intellect to produce policy solutions regularly; this is because the solutions adapt to problems to which they are directed (Craven para. 8).

Judicial activism also poses danger to the judges. This includes dangers to the independence of the judiciary. The independence of the judiciary necessitates court’s independence from politics. Whenever courts embark on routine policy formulation course, then the process becomes political. Thus, when such a case prevails, the independence of the judiciary cannot be easily set aside from politics and politicians. Therefore, with the rising judicial activism, it is very hard to maintain the status of the courts as in earlier times. This is because decisions made by the courts and/or judges are no longer rooted in law, but are also based on political opinions and views of both the judges and the politicians. This is contrary to the constitutional requirements (Craven para. 9).

Judicial activism has led to the decline in the rule of law in Australia. The basis of the rule of law is that any judgment or judicial decision that is made by the court should be in line with the constitution. Judicial activism is bringing a trend in the Australian Judiciary where the opinion of non-judges begins playing an increasing role in determining the decisions and judgment that judges deliver. This in itself is gradually leading to the breach of the constitution. For instance, trial judges have to dig deep into any case that is presented to them and sufficiently assess it before deciding it or forwarding it to other judicial levels unless it is possible for them to make a ruling on the case. With judicial activism, this is no longer the situation when judges rush to conclude on cases unilaterally (Charlesworth 200).

Judicial activism is increasingly putting the judiciary at logger heads with the Australian society because there are certain rulings that touch on societal issues. An example can be derived from Justice Michael Kirby, the Head of the Australian High Court, who has been criticized on various occasions for using his judicial position to promote homosexuality among other trendy courses. In the same way, Alistair Nicholson, who was a chief of the family court, used his judicial position to push for numerous radical courses. The cases that judge Nicholson championed for have had unfavorable effects on the family institution. Both judges refused to apologize for making such decisions; and instead, they strongly stood to defend the decisions that they have made (Charlesworth 200).

Judicial activism results in a scenario where a number of judges, commissions, courts and tribunals make attempts to align to minority groups and work against majority wishes. These actions are undertaken without considering the dangers that they pose to the general population and disregarding the interests of these communities. Thus, the probability of bringing about conflicts between different communities in the country arises. Judicial activism is likely to bring about communal divisions; therefore, its practice in Australia has potentially detrimental consequences (Craven para. 8).

Judicial activism has penetrated and caused a rift in the academic institutions in the country. Most law schools in Australia foment and promote judicial activism. For instance, it has been established that a good number of lecturers at the Law Department of the University of Melbourne are Lesbian activists. Majority of law schools in the country have become bases of judicial activists and radicals. This spillage effect of judicial activism from Australian courts to academic institutions is likely to have negative impacts on the students who study law in the country. The objectivity of studying law is watered down as the environment has become very radical. The environment under which law is studied becomes a platform for activists who include radical feminists, Marxists, homosexual activists, as well as other advocates of social reforms (Henkel 8).

Judicial activism causes confusion in the courts as exhibited by the differing decisions that are made by the courts. The decisions made by courts become so diverse because they are made based on different interpretations of the law by courts and judges. In true spirit of the law, decisions should be made relying on the provisions of the constitution. In this environment of judicial activism, the gains in justice regarding a certain case by one court may result in effects that are harmful, but were not initially intended by that court ruling. Such cases have a negative impact on the view of the judiciary by citizens and the public in general. The public is likely to lose confidence in the judiciary of the country. Also, the law may fail to achieve the support it deserves from the public (Charlesworth 197).


Judicial activism has become a common topic of discussion especially in the western countries. Australia is one of the states in the world where judicial activism has taken root. Judicial activism generally refers to the decisions that are made by courts with a particular inclination. Activism is depicted in these decisions when they are deemed to have been influenced by opinions and arguments that are viewed as being outside the law and which do not relate to the constitution. The practice of activism is very prevalent in the Australian judiciary. There are many instances that can be pointed out to indicate that the practice of judicial activism in Australia is rife. Judicial activism has resulted in a number of contestable rulings, such as those that support homosexuality and lesbianism in the country. Activism has also spilt into law schools in the country, thereby endangering the objectivity of teaching law. Generally, activism is impacting negatively on the judiciary in the country.

Works Cited

Charlesworth, Hilary. The Fluid State: International Law and National Legal Systems. Sydney: The Federation Press, 2005. Print.

Craven, Greg. “Reflections on Judicial Activism: More in Sorrow than in Anger.” 9 Proceedings of the Samuel Griffith Society 9 (1997): 103-113. Web.

French, RS. “Judicial Activism–The Boundaries of the Judicial Role.” Lawasia Conference. 2009, Ho Chi Minh City, Vietnam. Web.

Henkel, Jan. Should the High Court or the Parliament Determine the Rights and Freedoms of Australians. Norderstedt Germany: Druck und Bindung: Books on Demand GmbH, 2004. Print.

Hunter, Tina. “Rule of law, separation of powers and judicial decision making in Australia: Part 1.” The National Legal Eagle 11.1 (2005); n. pag.. Web.

Lewis, Frederick. The Context of Judicial Activism: The Endurance of the Warren Court Legacy in a Conservative Age. Lanham, Md: Rowman & Littlefield, 1999. Print.

Powers, Stephen and Stanley Rothman. The Least Dangerous Branch: Consequences of Judicial Activism. Westport, Conn: Praeger, 2002. Print.

Roosevelt, Kermit. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven: Yale University Press, 2006. Print.

Thornton, Margaret. Sex Discrimination in Uncertain Times. Canberra: ANU E Press, 2010. Print.

Wolfe, Christopher. Judicial Activism: Bulwark of Freedom or Precarious Security? Maryland: Rowman & Littlefield, 1997. Print.