Judicial Activism In The Contemporary Australian Judicial System
By establishing fixed sentencing periods, judges have minimal discretionary powers to influence the penalty. Any question of partiality of the sentencing portion of a trial would be removed and consequently, judges would be able to make unbiased and principled decisions (Determinate Sentencing Pros and Cons 2014). In doing so, they would be able to maintain the rule of law. The rule of law in the contemporary Australian legal system promotes equal access to justice for all (Vines 2013, p. 319). As significant figures of the judicial system, judges must ensure that courts are independent, impartial, open and transparent and provides a fair and prompt trial (Rule of Law Institute of Australia 2015). This could be an issue with indeterminate sentencing
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Consequently, judicial activism may occur. Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law (Heydon 2003). A judge may be affected by conscious bias for or against a particular litigant. This is exemplified in the American case of United States v Bad Marriage where the defendant attacked his girlfriend (The Heritage Foundation 2015). In the opinion of Judge Ferguson, the defendant’s 41-month prison sentence should be overturned. The judges were partial as they had personal sympathy for the defendant (The Heritage Foundation 2015). They held he should not get such a sentence because the “ravaged” individual was in need of “treatment” and not a longer sentence (The Heritage Foundation 2015). Another example, which illustrates the issue with judges having large discretionary power, is a study conducted by Maya Sen, a political scientist at the University of Rochester, and Adam Glynn, a government professor at Harvard (Tabo 2014). The study concluded that having at least one daughter as opposed to one son is associated with a 16 percent increase in the proportion of gender-related cases where a judge has ruled in the favour of a female or received a relatively low severe sentence (Tabo 2014). Sen explains that by having at least a daughter, judges may understand more about the issues young women may have to deal with such as equity in terms of pay, university admissions and parental responsibilities (Tabo 2014). Evidently,
Consequently, judicial activism may occur. Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law (Heydon 2003). A judge may be affected by conscious bias for or against a particular litigant. This is exemplified in the American case of United States v Bad Marriage where the defendant attacked his girlfriend (The Heritage Foundation 2015). In the opinion of Judge Ferguson, the defendant’s 41-month prison sentence should be overturned. The judges were partial as they had personal sympathy for the defendant (The Heritage Foundation 2015). They held he should not get such a sentence because the “ravaged” individual was in need of “treatment” and not a longer sentence (The Heritage Foundation 2015). Another example, which illustrates the issue with judges having large discretionary power, is a study conducted by Maya Sen, a political scientist at the University of Rochester, and Adam Glynn, a government professor at Harvard (Tabo 2014). The study concluded that having at least one daughter as opposed to one son is associated with a 16 percent increase in the proportion of gender-related cases where a judge has ruled in the favour of a female or received a relatively low severe sentence (Tabo 2014). Sen explains that by having at least a daughter, judges may understand more about the issues young women may have to deal with such as equity in terms of pay, university admissions and parental responsibilities (Tabo 2014). Evidently,