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July 28, 2007
A quote from Katharine Betts Judicial Activism, Immigration and the One-Child Case in People and Place on the growth of the judiciary into areas that were once seen as the perogative of the executive and Parliament.
The role of the courts in Australian politics has expanded since the late 1970s and judicial decisions now affect a growing number of areas once seen as the province of parliament and the executive. This growth in judicial power is not something peculiar to Australia; in a number of democracies policy-making has, to a degree, shifted away from the elected institutions designed to express the will of the majority and moved towards the courts, institutions traditionally concerned with questions of individual or minority rights.Under a democracy, parliament and the executive are elected (directly or indirectly) by a majority of citizens, but the rights of the minority who did not win at the ballot box are protected by the rule of law. Drawing on Constitutions, Bills of Rights, case law, or international treaties, courts are increasingly using their power to enforce the rule of law in such a way as to restrict parliament’s and the executive’s autonomy in governing the lives of their nation’s citizens.
This growth in judicial power is not something peculiar to Australia; in a number of democracies policy-making has, to a degree, shifted away from the elected institutions designed to express the will of the majority and moved towards the courts, institutions traditionally concerned with questions of individual or minority rights.
Judicial activism is defined as creative interpretations of the law.This happens when judges decide cases dealing with fundamental moral and ethical issues. He said these kinds of cases show that when parliament fails to determine important social, economic and political questions, as was the case in Mabo, then the Courts will be called on to resolve them in the form of legal issues. He said sometimes politicians find it politically convenient to leave these kinds of questions to the Courts.
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