Activity 9l

1. There are a number of ways in which judicial activism affects the ability of parliament to make law including:

• therelationship between the courts and parliament – for example,in relation to the relationship between the courts and parliament, courts have always had a law-making function. Criticisms of being ‘activist’ shouldn’t deter judges from exercising what has always been their power, and what they have been applauded for in different political environments.
• use of individual judgment and policy considerations – for example,laws including the Constitution are regularly drafted with theintention of courts using judgment and ‘policy’ considerations tointerpret them and help them evolve over time. Policy is everythingoutside the scope of the words and drafting of the law – it includescommunity values and the social impact of the law, for instance.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the impact of judicial activismon the ability of courts to make lawrequires students to write about relevant factors enabling courts and relevant factors limiting courts. Responses will vary according to the arguments selected.

3. The task word ‘analyse’ requires features or concepts to be broken down and shown how they relate to each other. It may require both sides of the question to be addressed to some extent, and a clear opinion to be provided. In this case, a clear opinion on one way in which judicial activismaffects the ability of courts to make law should be given.

For example, in relation to the relationship between the courts and parliament, courts have always had a law-making function. Criticisms of being ‘activist’ shouldn’t deter judges from exercising what has always been their power, and what they have been applauded for in different political environments. However, even ‘activist’ judges, who believe in the importance of judicialcreativity in developing the law, do not believe that their role isto challenge or override parliament, or to take over the legislativefunction. ‘Activism’ does not extend this far.

4. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that while there are some limiting factors, judicial activismdoes enable courts to make law. In this case, ‘evaluating’ the ability of courts to make law in relation to the doctrine of precedent requires students to write about relevant factors enabling courts and relevant factors limiting courts.

For example, in relation to the relationship between the courts and parliament, courts have always had a law-making function. Criticisms of being ‘activist’ shouldn’t deter judges from exercising what has always been their power, and what they have been applauded for in different political environments. However, even ‘activist’ judges, who believe in the importance of judicial creativity in developing the law, do not believe that their role is to challenge or override parliament, or to take over the legislative function. ‘Activism’ does not extend this far. For example, former High Court chief justice Gerard Brennan was on the bench for progressive judgments such as Dietrich, the ACTV case, Mabo and Wik. He agreed with the finding of the right to legal representation in Dietrich; with the freedom of political communication in ACTV; and with the existence of native title in Mabo and Wik. He is considered an ‘activist’ judge, but in both Wik and ACTV he deferred to the parliament’s power and judgment.