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

See all articles by Nicholas Aroney

Nicholas Aroney

The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion

Benjamin Saunders

Deakin University, Geelong, Australia - Deakin Law School

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’.

Suggested Citation

Aroney, Nicholas and Saunders, Benjamin, On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia (December 10, 2017). University of Queensland Law Journal, Edited by Richard Ekins and Graham Gee, December 2017, Available at SSRN: https://ssrn.com/abstract=3085667

Nicholas Aroney

The University of Queensland - T.C. Beirne School of Law ( email )

Brisbane 4072, Queensland
Australia
+61-(0)7-3365 3053 (Phone)

HOME PAGE: http://law.uq.edu.au/profile/1098/nicholas-aroney

Emory University - Center for the Study of Law and Religion ( email )

Atlanta, GA 30322
United States

HOME PAGE: http://cslr.law.emory.edu/people/senior-fellows/aroney-nicholas.html

Benjamin Saunders (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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