Introduction
Judicial activism is a kind of activism that circumvents around the decisions that are made by judges in different states and or judicial systems and the general impacts of the judicial systems across different arms of governments and the general citizenry. Judicial activism has been defined differently in different inclinations by different scholars and peoples though all the definitions centers on the judiciaries and the judicial decisions that are made. Borrowing from the Black’s Law Dictionary, judicial activism can be defined as a philosophy of making judicial decisions where judicial officers allow in their personal perspectives on public policy and other factors to guide the decisions they make (Roosevelt, pp. 18).
Judicial activism has been on a rising trend more so in the Western world. Judges in these countries are increasingly engaging themselves in the in political and social issues. In Australia, judicial activism has in recent times become a more popular and is widely discussed. There decisions that are made by judges could be termed as having activist attributes through a number of dimensions that the decisions take. These include their 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, pp. 13).
Judicial activism debates centers on the thesis that judges assume the duties and or functions of the legislatures or the executive. However, there is also the question concerning interference of the executives and the legislatures interfering with the functioning of the judiciaries. Debates on judicial actions and or decisions have become more common in a majority of states in the world today. When judicial decisions are talked of, the other government arms like the executive and the legislature cannot be left out and or wished away. Judicial activism receives support from some people while other people antagonize this form of activism (French, PP. 2).
This paper thus discuses judicial activism in Australia. The paper brings out both the positive factors that judicial activism brings and also the negative aspects that comes with judicial activism and gives a stand depending on the magnitude of argumentative points.
Perspective of Judicial Activism Debates
Judicial activism can be debated from two perspectives. The first perspective is that judicial activism does occur when judges use the law in achieving political goals which judges considers to be important. Even though the ruling made is of benefit to the people in whole, such decisions are still criticized for having been made outside the judicial realms. The second perspective exists when a new case and or cases that is outside the boundaries of any case that existed before is perceived as not fitting within the law that was previously set. In times of making a ruling, judges make a decision whether to make ruling to best fit to either of the laws that have already been set or either make independent rulings. This means that judges will interpret the law according to the way in which they perceive law thus rather than just applying the law to a scenario, they make laws (Wolfe, pp. 5).
The Legitimacy of Judicial Activism
The legitimacy of judicial activism does vary depending on the context under which it occurs. It is not easy to legitimize or disapprove of the judicial activism.it is important to know the context in which the judicial decision is reached before criticizing it (Lewis. pp. 71).
Judicial Activism in Australia
Judicial activism has deep exoneration in the Laws of Australia. Australian institutions which include the economic institutions, social, as well as academic institutions are changing. These changes are being aggravated by technology therefore necessitating changes in the manner in which crimes are committed and in the way justice and or judicial decisions are debated and concluded (Hunter, pp. 3)
In Australia, there are many concerns, controversies and criticism concerning judicial decision making in the country. All these are based on judicial activism which gives room to the judiciary to extend the role it plays in power separation. The separation of powers is embedded in the constitution that assumes the rule of law. However, the question on whether judicial activism by way of principle, policy and or rule jeopardizes the doctrine of power separation remains unanswered. An instance here focuses could be drawn from Justice Lionel Murphy who was a High court judge in the Australian court. Murphy was very activist as in his approaches managed to make sound judicial decisions. In spite of the seemingly sound decisions, many of the judgments that he made were still questioned. His critics pointed that he did not support the judgments he made in a proper legal way. The critics further points that the judgments he delivered had some tags of his political inclinations. This implies that it is hard to separate politics from the judiciary. Judicial activism is mostly instigated by political inclinations and or derivatives (Hunter, pp. 4).
The question that remains lingering is whether the judicial system of Australia has come to beat its power in the interpretation of law concerning power separation or on whether the Australian judicial system has just changed in adapting to the political and social landscape of the country (Hunter, pp. 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 to view judicial mechanisms with differing interests and hostilities (Hunter, pp. 4).
Dangers of Judicial Activism
Judicial activism as in Australia when looked at from the societal point of view is that as concerning the progression of the constitution is that it breaches democracy as it is not consistent with democratic principles. Judicial activism is leading to the rise of a group of judicial philosophers who are taking unilateral positions that defines the society rather than leaving the issues to the society itself to determine them. This is further lethal to democratic psychology. The populist nature of the state is becoming altered due to radicalism that arises from judicial activism (Thornton, pp. 330).
Judicial activism constraints power separation values. A number of judges are becoming fond of referring to that value of power separation whenever there is mal legislation or the executive interferers 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 at any instance the judiciary tries to undermine the legislative power of the executive arm of the government. Therefore, the contempt by courts as in reference to the principle of separation of powers could only steer for a corresponding contempt as to the other arms of the government though with potentially harmful effects. It is more visible that the current Australian politicians are viewing the activist High Court with intense cynicism as concerning the commitment to power separation. The other problem that is related to separation of power has an ethical inclination. This problem is when the High Court and or other courts decides to assert the power separation value and at first denies the intensions of constitutional interpretations in a way that is not in line with the constitutional desires that were expressed by the founders of the constitution, yet the courts are still observed to be doing similar things. This generates a great inconsistence in the Australian constitutional jurisprudence (Henkel, pp. 6).
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 the atmosphere of judicial activism more often lacks specific aptitude for policy. Thus it becomes more unlikely that the forays of judges in reaching major policies will be successful. This is because judges do not own the resource of experience and or the practical intellect to produce policy solutions regularly as the solutions adapt to problems to which such solutions are directed (Craven, pp. 8).
Judicial activism also poses dangers to the judges. This activism has dangers to the independence of the judiciary. The independence of the judiciary necessitates court independence not only from the activities of politicians but also from politics. Whenever courts embark on routine policy formulation course, then the process becomes a political process. Thus when such a case prevail, 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 because decisions made by the courts and or judges are no longer rooted in law but are also being based on political opinions and or views of both the judges and other politicians and not on the constitution as it ought to be (Craven, pp. 9).
Judicial activism is leading to the death of the rule of law in Australia. The basis of the rule of law is that any judgment and or judicial decision that are 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 judges are increasingly playing a big role in determining the decisions and or judgment that judges are delivering. This in itself is increasingly leading to the breach of the constitution. For instance, trial judges have to dig deep into any case that is presented before him or her and sufficiently assess the case before deciding the case and or forwarding the case to other judicial levels incase he finds it hard to make a ruling on the case. With judicial activism, this is no longer that case as judges rush to conclude on cases unilaterally (Charlesworth, PP. 200).
Judicial activism is increasingly putting the Judiciary at logger heads with the Australian society because of certain rulings on societal issue. Example can be derived from Justice Michael Kirby, the Head of the Australian High Court has more often than not been criticized of using his Judicial position in the promotion of homosexuality as well as other trendy courses. In the same way, Alistair Nicholson who is a former chief of the family court used his judicial position to push for numerous radical courses. The courses that Nicholson championed for have had inimical effects to the family institution. Both Judges have refused to apologize for making such decisions. They have strongly stood to defend the decisions that they have made (Charlesworth, PP. 200).
Judicial activism is resulting in a scenario where a number of judges, commissions, courts and or tribunals are making attempts to align to minority groups and or work against majority wishes. These actions are being undertaken without considering the dangers that the actions poses to the general population and or considering the interests of these communities. This has the probability of bringing about conflicts between the different communities in the country. Judicial activism is likely to bring about communal divisions therefore its practice in Australia has potentially trivial consequences (Craven, pp. 8).
Judicial activism has spilt to the academic institutions in the country. Most law schools in Australia are fomenting and promoting judicial activism. For instance it has been established that a good number of the lecturers at the Law Department of the University of Melbourne are Lesbian activists. Majority of Law schools in the country have becomes 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 are studying law in the country. The objectivity of studying law is being watered down as the environment has become very radical. The environment under which law is studied is to a wide extend becoming a home for activists who include homosexual activists, radical feminists, Marxists as well as other advocates of social reforms (Henkel, pp. 8).
Judicial activism causes confusion as to different courts and the differing decisions that are made by the courts. The decisions of courts are becoming so diverse and decisions of the courts are made basing on different interpretations of the courts and judges not so much by basing on the provisions of the constitution. In this environment of judicial activism, the gains in justice as it appertains to a certain case by one court may result in effects that are harmful which were not intended by that court. Such cases have a negative impact on the view of the judiciary by the citizens and or the public. The public is likely to loose confidence in the judiciary of the country. Also the law may fail to achieve the command it deserves to receive from the public (Charlesworth, PP. 197).
Conclusion
Judicial activism has become a common topic of discussion more so in the western countries. Australia is one of the states in the world where judicial activism is practiced to a very big degree. Judicial activism generally refers to the decisions that are made by courts. Activism is depicted in these decisions when these decisions are deemed to have been influenced by opinions and or arguments that are viewed as being outside the law and or 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 which are indicative of the practice of judicial activism in Australia. Judicial activism has resulted in a number of rulings for instance ruling that support homosexuality and lesbianism in the country. Activism has also spilt to law schools in the country thus endangering the objectivity of learning law. Generally, activism is impacting negatively on the judiciary of the country.
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