Abstract
Judicial activism, understood as control or influence by the judiciary over political or administrative institutions, processes and outcomes, is a central and robust part of Australian governance. At the highest level, the judiciary has been institutionalized within the Constitution as a branch of government along with the legislature and the executive. The High Court of Australia was broadly modelled on the American Supreme Court by the framers of the Australian Constitution and given the key role of exercising judicial review which it has performed with relative ease and distinction for almost a century of federation.1 The High Court remains active in performing that role and in recent years has made major decisions in reshaping the constitutional powers of government. The Australian case should be of interest to students of comparative judicial review because it shows how an astute judiciary has engaged in judicial activism on a grand scale, but largely sheltered from public scrutiny behind the professional disguise of formal legalism. That disguise is currently being removed, however, by leading judicial spokesmen as well as by critical scholarship, so there is increasing public discussion of the character and legitimacy of judicial law-making and the appropriate role for the judiciary.
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Notes
B. Galligan, Politics of the High Court (St. Lucia, Queensland: University of Queensland Press, 1987).
J. Rickard H. B. Higgins: the Rebel as Judge (Sydney: George Allen & Unwin, 1984), p. 171.
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For a classic review, G. Sawer, Australian Federalism in the Courts (Melbourne: Melbourne University Press, 1967);
Labor’s uneasy accommodation with the constitution is evident in E. G. Whitlam, On Australia’s Constitution (Camberwell, Vic.: Widescope 1977)
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B. Galligan, ‘Judicial Review in the Australian Federal System: its Origin and Function’, Federal Law Review 10 (1979);
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The most recent referendum was in 1988 but this failed dismally: B. Calligan and J. R. Nethercote (eds), The Constitutional Commission and the 1988 Referendums (Canberra: Centre for Research on Federal Financial Relations, Australian National University, 1989).
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Dixon J. ‘An exercise of a power, whether legislative or administrative, cannot rise higher than its source,’ Shrimptom v. Commonwealth (1945) 69 CLR 630. James Bryce’s The American Commonwealth (1888) was the ‘bible’ of the Australian founders.
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O. Dixon, Address upon Taking the Oath as Chief Justice, Sydney, 21 April 1952, in Jesting Pilate and Other Papers and Addresses, collected by Judge Woinarski (Melbourne: Law Book Company, 1965), p. 247.
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Murphy was a highly controversial judge who was plagued in later years by accusations of improper conduct and died of cancer while charges against him were being investigated. For a critical view, P. Bickovskii, ‘No Deliberrate Innovators: Mr Justice Murphy and the Australian Constitution/ Federal Law Review 8 (1977);
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See D. Aitken and F. Castles, ‘Democracy Untrammelled: The Australian Political Experience Since Federation,’ in K. Hancock (ed.), Australian Society (Sydney: Cambridge University Press, 1989).
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Administrative Appeals Tribunal Act 1975; Ombudsman Act 1976; Administrative Decisions (Judicial Review) Act 1977. For a fairly comprehensive account, M. Aronsen and N. Franklin, Review of Administrative Action (Sydney: Law Book Company, 1987).
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© 1991 Kenneth M. Holland
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Galligan, B. (1991). Judicial Activism in Australia. In: Holland, K.M. (eds) Judicial Activism in Comparative Perspective. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-11774-1_5
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