judicial conservatism and judicial activism Flashcards
define judicial conservatism
an expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases (i.e. avoid major or controversial changes in the law and not be influenced by their own political beliefs or the views of the community)
define judicial activism
an expression used when judges consider a range of social and political factors when interpreting Acts of Parliament and deciding cases (i.e. consider the changing political beliefs and the views of the community)
define law reform
the process of constantly updating and changing the law so it remains relevant and effective
Judicial conservatism
- Judicial conservatism emphasizes caution and restraint in judicial decisions to avoid major changes in the law.
- Judges with a conservative approach adhere closely to established legal principles and avoid extensive reinterpretation.
- Parliament is the supreme law-making body and is generally seen as having more authority for significant legal reforms.
- Judges should interpret laws based on legal considerations, not personal or political views.
- Judicial activism advocates for considering social, political, and community factors in judicial decisions, contrasting with judicial conservatism.
- The High Court has exhibited both conservative and activist approaches; it often maintains a conservative stance in constitutional matters, focusing on parliamentary intent.
- The 2020 appointments of two High Court justices led to speculation about whether the Court would lean more conservative or activist.
define full bench
all seven justices of the High Court sitting to determine a case
Judges and law reform
- Judges may act conservatively to avoid making major or controversial changes in the law.
- They may prefer that parliament, rather than the courts, address contentious law reform.
- Parliaments can investigate law reform through methods like committees and bodies such as the Victorian Law Reform Commission (VLRC).
- Courts lack the ability to conduct public investigations and are restricted to the resources available in the court.
- Courts can only address issues directly related to the case before them, while parliament can create laws covering broader areas and future circumstances.
define parliamentary committee
a small group of members of parliament who consider and report on a single subject in one or both houses. Committee members can come from any party
define extrinsic material
material (i.e. information) that is not part of an Act of Parliament, but may assist a judge to interpret the meaning of the Act
Judicial activism
- The term “judicial activism” lacks a single clear definition and has evolved over time.
- It was first coined in the 1940s by Arthur Schlesinger Jr. to describe US Supreme Court judges who broadly interpreted civil rights protections.
- Initially, it referred to judges who made rulings against conservative views to protect minority rights.
- In recent years, it denotes judges considering social, political factors, community views, and rights in their decisions.
- Critics view judicial activism negatively, accusing judges of overstepping their legislative or constitutional powers and expanding statutes beyond their original intent.
- Supporters prefer terms like “progressive” and argue that judicial activism is limited by the court’s role in interpreting existing laws and case specifics.
define terra nullius
a Latin term meaning ‘empty land’; a false common law principle that was used by the British to declare that Australia belonged to no one when they first arrived in Australia to establish a colony in 1788
define native title
the legal recognition of the right of First Nations people to be the owners of land and waters based on their traditional ownership of the land (which existed thousands of years before the British colonisation of Australia)
The Mabo case
- In 1993, following the Mabo decision, the Commonwealth Parliament passed the Native Title Act 1993 (Cth) to handle native title claims.
- The Mabo decision was criticized by some as an example of improper judicial activism, alleging excessive judicial creativity and a departure from objectivity.
- Critics argued the High Court’s ruling was driven by political and social desires to recognize First Nations’ land rights.
- Others, including First Nations people and the Federal Government, praised the High Court for courageously overturning the outdated terra nullius doctrine.
- The debate over judicial activism and progressiveness in decision-making is controversial and case-dependent.
- Some view judicial activism as overstepping the court’s role, while others see it as a necessary means to achieve justice and reflect community values.
Explanation points
- Judicial conservatism reflects the idea that courts should show restraint in making decisions that could lead to significant changes in the law.
- Judges practicing conservatism help maintain stability in the law by being cautious and restrained in their rulings.
- Conservatism may reduce the likelihood of appeals on questions of law.
- It allows parliament, which can better reflect community views and values, to handle more significant and controversial legal changes.
Discussion points
- Judicial conservatism restricts the ability of courts to make major and controversial changes in the law.
- Judges may not consider a range of social and political factors when making decisions.
- It may be viewed as not progressive enough and failing to incorporate modern views or values in legal decisions.
Judicial activism explanation points
- Judicial activism broadly refers to the willingness of judges to consider a range of social and political factors when interpreting the law and making decisions.
- It allows judges to interpret statutes broadly, recognizing the rights of people and potentially leading to more fair judgments.
- It enables judges to be more creative and make significant legal changes, as seen in cases like Mabo.
