Judicial Activism

[entheofarm]

I found this old paper I wrote for a law unit, not sure what mark it got.

 

This was written long before the police fucked me over and I became a cannabis activist.

 

The role of Judicial Activism in shaping the laws of Australia.

 

 

Introduction

Is it possible for myself as a first year law student to have the ability to critically discuss the role of judicial activism in shaping the laws of Australia? I for one do not believe so. I will go as far as comparing it to someone attempting to write a novel before learning the alphabet. Firstly one would need a thorough understanding of judicial activism to be able to critically discuss it and secondly some sort of personal opinion would need to be portrayed, I have neither a thorough understanding nor a developed opinion on the subject, however I will feel free to develop an opinion throughout the course of this paper.

 

To critique judicial activism we need to have an understanding of what it is. We shall consider judicial in the sense of the courts themselves and the decisions and impact that the justices sitting in them have or more precisely, ‘A description of that which emanates from a judge or judges when exercising the power to determine liability or otherwise affect the legal rights of subjects through the application of the law to particular facts and circumstances’. Activism can be considered the actions of someone who believes in something. The combination of the two is described by wikpedia as; The definition of "judicial activism" is itself an intense ongoing debate. According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent". According to Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." Different legal scholars and judges have different definitions of judicial activism. Clearly the term judicial activism is open to interpretation and personal opinion and if it was based soley on ignoring precident then I could focus entirely on the judgments of Murphy J who was renowned for such actions.

 

Allthough there is no listing for Judicial activism in Butterworths Concise Australian Legal Dictionary (3rd ed) it describes judicial discretion as ‘The power of a judge to exercise a personal notion of fairness’. I believe this to be the closest description of what the meaning of judicial activism is if any.

 

Being that the High Court of Australia is the highest in the legal hierarchy of Australian Courts and has original jurisdiction I will refer to it as the Court that has the most influence on developing and shaping the laws of Australia past and present.

 

Lionel Murphy

 

Lionel Murphy was well known for the impact he had on the High Court and his role in shaping laws in Australia from 1975 until his death in 1986. After 13 years sitting in the senate Justice Murphy was appointed to the High Court in 1975, when speaking of his apointment to his brother Murphy stated ‘I feel I can do more for the Australian people there’. I assume from this statement that Justice Murphy intended on carrying his personal beleifs over to the High Court. Considered to be an activist by some and radical by others I believe that Justice Murphy was allowing the laws to adapt to current social requirements, letting the law evolve. Justice Murphy spent many years attempting to change laws in Australia and perhaps he felt this was best done as a Justice of the High Court. Allthough possibly his greatest impact on Australian law was made before his appointment with his legislative success of the Family Law Act, which completely changed the relevant laws of the time. Throughout his career Lionel Murphy had challenged settled political and legal boundaries successfully. He believed that Australia could be a fairer more just society. None of this made him an activist, perhaps radical in a sense, yet his influence allowed the law to develop more freely than had he never sat as a Justice of the High Court.

 

Evolution of Australian Law

I am of the view that Judicial Activism is an unfounded theory or mythology, Each Justice sitting in the High Court is entitled to allow their own beleifs to impact on the way they adapt the law. The law will continue to evolve to meet current trends. This was the basis for the decision of the High Court in Viro v The Queen. Justice Gibbs stated ‘It is for this Court to assess the needs of Australian society and to expound and develop the law for Australia in the light of that assessment’. Clearly Gibbs felt that it was upto the High Court to develop the law yet other justices have believed in the thoery that they should apply the law and not develop it. So where does the High Court stand? The views of the justices have attempted to abide by public policy yet there are circumstances where the justices have applied their own beliefs ahead of public policy in an attempt to influence the law. Murphy J in his reasons for judgement in Neal v The Queen went to great lengths to describe the impact of living in an Aboriginal community and how this should be recognised before passing judgement. Murphy obviously applied his own personal beleifs to the case at the expense of public policy. There was no need for Murphy to claim ‘that this was a race relations case’ as the judgement would have been the same regardless but perhaps he took it as an oppurtunity to raise the issue of his dissatisfaction with the workings of the criminal justice system in relation to Aboriginal people. The development of law in the High Court as demonstrated above has been based on the personal beleifs of the justices sitting at the time and on the needs and expectations of society as a whole, this is what I consider to be judicial evolution.

 

 

Conclusion

Recently several new laws have been passed relating to Industrial relations, Terrorism and even Smoking, it is necessary for the High Court to have the authority to shape and adjust these laws so that they may reflect current public policy. How these laws are shaped will be based on how the justices interpret the laws and what impact their personal beleifs, if any, will have. It is not a form of judicial activism but a type of judicial evolution, as the justices retire the new justices will apply their own beleifs upon the court and more than likely they will reflect the policies of the political party that appointed them, all of whom are representing the interests of a democratic society. Without judicial evolution we would be living with outdated laws which would hold no relevance to the current society which we live in.

[bufo marinus]

Looking for some inspiration this morning I sourced out info on Justice Lionel Murphy on Wikipedia.

What a truly great Australian. I have much respect for this judge and have underlined one of his many many famous judicial quotes

 

A member of the Australian Labor Party from an early age, he was elected to the Australian Senate in 1961, and, in 1967, he was elected Opposition Leader in the Senate. In the Senate pre-selection Convention in the Sydney Trades Hall in April 1960, with backing from Ray Geitzelt (but lacking factional endorsement) and with the luck of drawing first in addressing the delegates, Murphy won support with an impassioned but well structured and infectiously optimistic seven minute speech on the Labor Party's historical commitment to civil liberties and human rights. In 1969 Labor Leader Gough Whitlam appointed him Shadow Attorney-General, and when Labor won the 1972 election he became Attorney-General and Minister for Customs and Excise.

 

One of Murphy's more dramatic actions as Attorney-General was his unannounced visit to the Melbourne headquarters of the Australian Security Intelligence Organisation (ASIO) in March 1973. This came about because ASIO officers were unable to satisfy his requests for information concerning intelligence on Croatian terrorist groups operating in Australia. Murphy's concern about the matter was heightened by the impending visit to Australia of the Yugoslav Prime Minister Dzemal Bijedic. ASIO officers claimed not to be able to locate the file with which to properly brief Murphy. Murphy's belief was that though a security service was an important part of the Australian social fabric, like any other arm of executive government it must be accountable to the relevant Minister.

 

Murphy's most important legislative achievement was the Family Law Act 1975, which completely overhauled Australia's law on divorce and other family law matters, establishing the principle of "no fault" divorce, in the face of opposition from the Roman Catholic Church and many other individuals and organisations. This act also established the Family Court of Australia. As Attorney General Murphy drew up a Human Rights Bill (which lapsed with the double dissolution of 1974) giving as amongst the reasons: "in criminal law, our protections against detention for interrogation and unreasonable search and seizure, for access to counsel and to ensure the segregation of different categories of prisoners are inadequate. Australian laws on the powers of the police, the rights of an accused person and the state of the penal system generally are unsatisfactory. Our privacy laws are vague and ineffective. There are few effective constraints on the gathering of information, or its disclosure, or surveillance, against unwanted publicity by government, the media or commercial organisations". Murphy also passed important legislation substantially abolishing appeals to the Privy Council, removing censorship, providing freedom of access to government information, reforming corporations and trade practices law, protecting the environment, abolishing the death penalty and outlawing racial and other discrimination. He established a systematic legal aid service for all courts, set up the Australian Law Reform Commission (and appointed Michael Kirby to be its inaugural chairman), the Australian Institute of Criminology and took the French Government to the International Court of Justice (ICJ) to protest against its nuclear tests in the Pacific. The French government conducted forty one atmospheric nuclear tests at Mururoa after 1966, formally ceasing atmospheric nuclear testing in 1974 as a result of public pressure facilitated by Murphy's ICJ case.

In February 1975, Whitlam appointed Murphy to a vacancy on the High Court of Australia. He was the first serving Labor politician appointed to the Court since Dr H.V. Evatt in 1931 and the appointment was bitterly criticised. He resigned from the Senate on 9 February 1975 to take up the appointment.

 

Although it did not become a constitutional requirement until 1977, it had been longstanding convention that a Senate casual vacancy be filled by a person from the same political party. However, on 27 February 1975, the Premier of New South Wales, Tom Lewis, controversially appointed Cleaver Bunton, a person with no political affiliations, to replace Murphy in the Senate, beginning the chain of events which led to the 1975 Australian constitutional crisis. These events in turn laid the groundwork for the 1977 constitutional change that now ensures such an appointment can never be repeated. Soon after his appointment to the bench Murphy visited Justice Menzies' old chambers in Taylor Square which would now be his. Staring at the volumes of British law reports on the shelves behind his desk he said "I want all of these to go". He replaced them with decisions from the US Supreme Court.

 

In addition to his work as a legislator, Murphy also took a lifelong interest in science. At Sydney University he combined his Bachelor of Laws degree (hons) with a Bachelor of Science (hons), and Justice Michael Kirby identified Murphy's later scientific reading as a positive influence on his approach to jurisprudence.

The "Lionel-Murphy SNR" was a nitrogen-abundant supernova remnant (SNR) N86 in the Large Magellanic Cloud named by astronomers at the Australian National University's Mount Stromlo Observatory in acknowledgement of Murphy's interest in science and because of SNR N86's perceived resemblance to a Canberra Times cartoonist's depiction of his large nose (prior to surgery).

Murphy normally rejected public honours (such as a knighthood), but accepted this because of the symbolic resemblance to his own impact on human rights in Australian law and it's lasting significance as a 'signpost' to space travellers. Murphy asked for a large mounted photo of SNR N86 from the scientific paper and placed it in his High Court chambers in the place where the other High Court justices usually hung a portrait of the Queen.

 

 

source; Wikipedia