The Dangers Of Judicial Activism In Australia
‘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 …show more content…
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 …show more content…
“It reversed the decision of the Judicial Committee of the Privy Council in the 19th century which had affirmed that all native Aboriginal interests in land in the Australian continent had been extinguished by the acquisition of sovereignty over Australia by the British Crown and the accession to the Crown of the radical title in land throughout Australia by reason of that sovereignty”. (Kirby, 2006)
That decision reversed a long held rule of the Australian common law to the effect that, on the British acquisition of Australia, all native title to land anywhere in the continent had been extinguished at the moment the British flew their flag on Australia soil. (Kirby, 2005) “A primary premise of the old law, that Aboriginals were universally nomadic with no interest in land, was shown to have been seriously wrong” (Kirby, 2005).
The Mabo v Queensland is a notable example of Judicial activism being used in a positive way, an example of our views, thoughts and opinions changing since laws were made and an example of the laws that were made decades ago not being correct in society today’s way of thinking. Although the decision was not supported by Australia implicitly, the majority would now support that this was the right or just thing to
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 …show more content…
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 …show more content…
“It reversed the decision of the Judicial Committee of the Privy Council in the 19th century which had affirmed that all native Aboriginal interests in land in the Australian continent had been extinguished by the acquisition of sovereignty over Australia by the British Crown and the accession to the Crown of the radical title in land throughout Australia by reason of that sovereignty”. (Kirby, 2006)
That decision reversed a long held rule of the Australian common law to the effect that, on the British acquisition of Australia, all native title to land anywhere in the continent had been extinguished at the moment the British flew their flag on Australia soil. (Kirby, 2005) “A primary premise of the old law, that Aboriginals were universally nomadic with no interest in land, was shown to have been seriously wrong” (Kirby, 2005).
The Mabo v Queensland is a notable example of Judicial activism being used in a positive way, an example of our views, thoughts and opinions changing since laws were made and an example of the laws that were made decades ago not being correct in society today’s way of thinking. Although the decision was not supported by Australia implicitly, the majority would now support that this was the right or just thing to