On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia
University of Queensland Law Journal, Edited by Richard Ekins and Graham Gee, December 2017
29 Pages Posted: 13 Dec 2017
Date Written: December 10, 2017
Abstract
It is a commonplace observation that there has been a ‘judicialisation of politics’ around the globe: a growing intrusion of the judiciary into realms once the preserve of the executive and legislative and a corresponding transfer of power to the courts. To what extent is this the case in Australia?
This paper argues that there has been a modest rise of judicial power in Australia, attributable to the development by the High Court of a handful of important constitutional doctrines which involve an incursion into democratic decision-making, and a significant expansion of the grounds on which executive action can be held unlawful. However, in few areas of policy or political decision-making can it be said that the High Court has the final say, and even in many of the High Court’s most ambitious and controversial moments, the political branches retain substantial latitude in implementing their policies. Australia has thus largely resisted a powerful and sweeping trend that has characterised most other comparable countries.
Several factors account for this, including the absence of a national bill of rights, and a judicial culture that is relatively resistant to the courts playing a more overt policy-making role. The courts have tended to preserve a firm distinction between law and politics, leaving the policy merits of a particular law for the legislature to determine, and in administrative law they have maintained that their role is to adjudicate on the legality of a decision, with the merits being a matter for the decision maker. A robust political culture dominated by a disciplined party system, which is not slow to criticise the courts where they step outside their perceived legitimate role, reinforces this judicial ‘reticence’.
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