Judicial Conservatism and Judicial Activism (VCE SSCE Legal Studies): Revision Notes
Judicial conservatism and judicial activism
Judges hold varying perspectives on how they should interpret the law and exercise their role in deciding cases. The approach judges adopt when interpreting legislation and making decisions significantly influences the courts' capacity to create law. Two contrasting judicial philosophies are judicial conservatism and judicial activism, each affecting law-making in distinct ways.
Judicial conservatism
Understanding judicial conservatism
Judicial conservatism describes an approach where judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases. Judges following this philosophy intentionally avoid making major or controversial changes to the law and ensure their decisions are not influenced by their own political beliefs or perceptions of community views.
This conservative approach fundamentally limits the courts' ability to make law because judges who adopt this stance will not venture far beyond established legal principles. They exercise restraint and caution when making decisions that could lead to significant changes in existing law.
Parliament's supreme role
A central principle underlying judicial conservatism is the recognition that parliament is the supreme law-making body. Parliament consists of elected representatives who make laws on behalf of the people. This democratic mandate gives parliament greater authority to implement major law reform compared to judges, who are not elected by the people.
Under this view, judges should interpret the law, not rewrite it.
Key features of conservative judging
An important characteristic of judicial conservatism is the belief that judges should base their decisions solely on legal considerations. Judges should not:
- Allow their personal views or political opinions to influence their decisions
- Make assumptions about community views on particular issues
- Attempt to assess public opinion when deciding cases
Instead, judges should focus exclusively on interpreting the law as written and applying established legal principles. They should give effect to what parliament intended when it passed the statute being interpreted.
Conservative approach to constitutional disputes
The High Court has exercised judicial conservatism when resolving constitutional disputes. High Court justices have adopted a conservative approach by:
- Limiting their role as law-makers when determining constitutional disputes
- Being reluctant to declare Acts of Parliament invalid unless they are obviously unconstitutional
- Upholding the view that judicial interpretation should give effect to parliament's intentions
This reasoning reflects the belief that the main purpose of judicial interpretation is to implement what parliament intended when it passed legislation.
The appointment of High Court judges
High Court judges (called justices) are appointed by the Governor-General on advice from the Australian Government. In practice, judges are chosen by the government of the day—typically the Prime Minister (usually on the recommendation of the Attorney-General) and other senior ministers.
In October 2020, Prime Minister Scott Morrison announced the appointment of two new High Court judges: Justice Jacqueline Gleeson and Justice Simon Steward. These appointments replaced Justices Virginia Bell and Geoffrey Nettle, who retired before reaching the mandatory retirement age of 70 years required by the Australian Constitution.
These appointments generated speculation about whether the High Court would become more 'conservative' or 'active'. Legal experts and commentators generally considered the appointments reflected the Liberal-National Coalition's more conservative ideology. Justice Steward, aged 51 at appointment, was considered to hold a more conservative judicial approach, known for favouring a more literal interpretation of the law. Similarly, Justice Gleeson was regarded as having a more conventional approach, described by one media article as a judge who has avoided any "adventurism on the bench".
Both justices are highly qualified legal professionals with vast legal experience, including being former Federal Court judges.
Judicial activism
Understanding judicial activism
Judicial activism refers to judges' willingness to consider a range of social and political factors when interpreting Acts of Parliament and deciding cases. This includes considering changing political beliefs and community views when making decisions.
The term has been defined in many ways, and there is no single clear definition. It was first used in the United States in the 1940s by academic historian Arthur Schlesinger Jr. He used it to describe US Supreme Court judges who were willing to broadly interpret constitutional rights and declare legislation that breached civil rights invalid. The meaning later expanded to refer to judges willing to make rulings against politically conservative or traditional mainstream views to protect the interests or rights of minority parties or groups.
Contemporary meaning of judicial activism
In recent years, judicial activism has been used to describe judges' willingness to consider:
- Community views and values
- Social and political factors
- The rights of the people
- The need to protect minority interests
Those who disapprove of judges taking a more active role have negatively defined judicial activism as judges making decisions arguably outside their legislative or constitutional power. For example, interpreting a statute in a way that expands its meaning beyond parliament's original intention to influence legal change.
Those who approve of judges taking a more active role use less negative terms such as "progressive" rather than "activist". They also note that judges' capacity to be active or creative is limited given the nature of courts' role in interpreting existing laws and deciding within the confines of the case.
The Mabo case—a landmark example
The Mabo case (1992) represents one of the first major Australian cases considered progressive or activist. In this landmark decision, the High Court justices (6:1 in favour) made a significant ruling to give Aboriginal and Torres Strait Islander people land rights.
Worked Example: The Mabo Case (1992)
Background and facts: In 1982, five men who were members of the Meriam people—Eddie Koiki Mabo, Sam Passi, David Passi, Celuia Mapo Salee and James Rice—joined together to have their traditional ownership of the island of Mer in the Torres Strait legally recognised. The Meriam men, led by Eddie Mabo, lodged a test case against the Queensland Government and the Commonwealth of Australia in the High Court.
The Court's decision: On 3 June 1992, after a 10-year legal battle, the High Court ruled in favour of Mabo. The Court decided that the Murray Islanders of the Torres Strait were entitled to possession, occupation and enjoyment of their traditional lands.
Significance: The High Court:
- Overturned the longstanding but false legal principle of terra nullius (meaning "empty land")—the common law principle that Australia belonged to no one before British colonisation in the late 1700s
- Legally recognised the right of First Nations Australians to make claims over their traditional land
- Established the concept of native title—the legal recognition of First Nations people's ownership of land and waters based on their traditional ownership existing thousands of years before British colonisation
Judicial activism in Mabo: The High Court's ruling was seen as an example of judicial activism because the Court broadly interpreted the law to protect the rights of the Meriam people. The Court boldly overruled the common law principle of terra nullius, which had existed since colonisation, and set a precedent establishing the right of First Nations people to claim, and in certain circumstances be granted, native title to their land.
Reaction and consequences: At the time, some critics viewed the decision as improper judicial activism, claiming the High Court was exercising excessive judicial creativity by establishing law based on political and social desires to establish land rights. Some said the ruling diminished the court's objectivity.
However, many others, including First Nations people who had long fought for land rights and the Federal Government, celebrated the ruling. They praised the High Court justices for acting with impartiality and courageously overruling the outdated and false legal principle of terra nullius.
In 1993, following the Mabo decision, the Commonwealth Parliament passed the Native Title Act 1993 (Cth) to establish procedures for dealing with and settling native title claims. As at October 2021, 539 native title determinations had been made, with 444 resulting in upholding the existence or partial existence of native title. Native title has been recognised on more than 32 per cent of Australia's land mass.
High Court rules on deportation of First Nations people
The Love v Commonwealth; Thoms v Commonwealth case (2020) represents another significant example of judicial activism where the High Court ruled against the Federal Government.
Worked Example: Love v Commonwealth; Thoms v Commonwealth (2020)
Background and facts: In 2020, the High Court clarified and expanded the rights of First Nations Australians by ruling that they have a sense of identity and belonging to Australia that cannot be changed or denied by the Commonwealth Parliament. The case arose after two Indigenous men, who had been convicted of serious indictable offences, faced deportation from Australia. Although they were Indigenous Australians, both were born overseas and only held permanent residency visas, despite having lived in Australia since childhood.
After their criminal convictions, the Australian Government—relying on the Commonwealth's constitutional power to make laws relating to immigrants—commenced proceedings to cancel their visas and deport them to their birth countries.
The challenge: The two men challenged the Government's decision on the basis that, despite being born overseas, they were Indigenous Australians and therefore could not be considered immigrants (or "aliens", the term used in the Australian Constitution). Therefore, they argued they could not be deported.
The Court's decision: Four of the seven High Court justices agreed that First Nations Australians cannot be considered immigrants or aliens to Australia because they have:
- An undeniable connection to the land
- A sense of kinship and ancestry that cannot be extinguished or denied
As such, Commonwealth immigration laws, including deportation laws, cannot apply to First Nations Australians because they cannot be considered to belong to another place.
Significance: The case was viewed by some legal commentators as one of the most significant cases since Mabo because it reinforced that First Nations Australians have unique constitutional status that cannot be overridden by Parliament.
Subsequent developments: In 2021, the former Liberal-National Australian Government attempted to have the High Court's ruling overruled by appealing a similar Federal Court decision. In that case, a man born in New Zealand argued he was a First Nations Australian because he had been "culturally adopted" by the Mununjali people of south-east Queensland. The Federal Court ruled in his favour, following the precedent set by the High Court in 2020. However, the newly elected Labor Federal Government abandoned the appeal in July 2022.
How judicial approaches affect courts' ability to make law
Effects of judicial conservatism
Judicial conservatism affects the courts' ability to make law in several ways:
Positive effects:
- Maintains stability in the law: Judges are cautious and show restraint when making decisions that could lead to significant changes, promoting consistency and predictability
- Reduces appeals: Conservatism could lessen the possibility of appeals on questions of law because decisions stay within established legal boundaries
- Respects parliamentary supremacy: Allows parliament, which has the ability to reflect community views and values, to make more significant and controversial changes in the law
- Preserves judicial independence: Judges base decisions solely on legal considerations without being influenced by political or social pressures
While judicial conservatism promotes stability and respects the separation of powers, it also places certain limitations on how courts can respond to social change and evolving community expectations.
Limiting effects:
- Restricts significant law reform: Judicial conservatism restricts the ability of courts to make major and controversial changes in the law
- Limits consideration of social factors: Judges may not consider a range of social and political factors when making law, potentially leading to outcomes that don't reflect contemporary values
- May not be progressive enough: It may be seen by some as not factoring in twenty-first century views or values when deciding cases
- Limited investigation capacity: Courts are not able to investigate public views and are limited to examining resources available in court (with the exception of consulting extrinsic material when interpreting statutes)
- Confined scope: Courts are limited to making law on issues or parts of law that are the subject of the case before them, whereas parliament can make laws on whole areas and in anticipation of future circumstances
Effects of judicial activism
Judicial activism affects the courts' ability to make law in different ways:
Positive effects:
- Recognises rights: Allows judges to broadly interpret statutes in a way that recognises the rights of the people and may lead to more fair judgments
- Enables creative decision-making: Allows judges to be more creative when making decisions and making significant legal change (as occurred in the Mabo case)
- Responds to social change: Enables courts to consider contemporary social and political factors when interpreting the law
- Protects minority interests: Can lead to rulings that protect the interests or rights of minority parties or groups who may not be adequately represented in the political process
Judicial activism can be particularly valuable when parliament is slow to address emerging social issues or when minority rights need protection from majority rule.
Limiting effects:
- May exceed community expectations: Judicial activism can lead to courts making more radical changes in the law that do not reflect community values or are beyond the community's level of comfort
- Increases appeals: It may lead to more appeals on questions of law, creating uncertainty and additional legal costs
- Limited capacity: Judges are limited in being "progressive" or "active" given the nature of their role in deciding cases within the confines of the case and in light of existing law
- Parliamentary override: Parliament is the supreme law-making body; it can abrogate (overrule) any decisions it does not agree with through legislation
- Unelected judges: Critics argue that unelected judges should not make decisions based on social or political factors that are properly the domain of elected representatives
The debate about labels
Some observers criticise the labels "conservative" and "active", claiming such classification is too simplistic and demonstrates a lack of understanding about the role of judges. The extent to which judges should be progressive or activist when making decisions and establishing precedents is controversial and largely depends on the circumstances of the case before the court.
While some people may consider judicial activism and the willingness of judges to consider the need to uphold rights and recognise community values as judges overstepping their role as independent law-makers, others view it as a legitimate obligation of the court that must be exercised by judges to ensure justice is achieved.
Exam guidance
When discussing how judicial conservatism and judicial activism affect the ability of courts to make law, you must:
- Provide reasoned arguments about how each approach can assist and limit or restrict judges' ability to make law
- Consider strengths and weaknesses where applicable
- Give your opinion if the question asks for it
- Use specific examples (such as the Mabo case or Love v Commonwealth) to support your arguments
- Demonstrate understanding that judges may adopt different approaches depending on the circumstances of the case
Command words to watch for:
- Discuss: Present reasoned arguments on both sides, considering positive and limiting effects
- Evaluate: Make judgments about the extent to which each approach affects law-making ability, weighing up strengths and weaknesses
- Analyse: Break down the effects of each approach and examine how they impact courts' law-making capacity
Remember!
Key Points to Remember:
- Judicial conservatism involves judges showing restraint and caution, avoiding major changes to the law and basing decisions solely on legal considerations
- Judicial activism involves judges considering social and political factors, community views, and the need to protect rights when interpreting law
- Parliament is the supreme law-making body with democratic mandate to implement major law reform
- The Mabo case (1992) is a key example of judicial activism, overturning terra nullius and establishing native title rights
- The Love v Commonwealth case (2020) demonstrated judicial activism by ruling that First Nations Australians cannot be deported
- Judicial conservatism limits courts' ability to make major changes but maintains stability and respects parliamentary supremacy
- Judicial activism enables courts to make progressive changes and protect rights but may exceed community expectations
- The extent to which judges should be conservative or activist is controversial and depends on case circumstances
- Some critics argue that labelling judges as "conservative" or "activist" is too simplistic and fails to understand judicial roles