Judicial Activism in Australia

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.