Judicial Activism : Power Without Responsibility ? No, Appropriate Activism Conforming to Duty  

Oleh:

Kirby, The Hon Justice Michael

Jenis: Article from Journal - ilmiah internasional
Dalam koleksi: Melbourne University Law Review vol. 30 no. 2 (Aug. 2006), page 576-593.
Topik: JUDICIAL; judicial activism; responsibility

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Perpustakaan Pusat (Semanggi) Nomor Panggil: MM70 Non-tandon: 1 (dapat dipinjam: 0) Tandon: tidak ada

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Isi artikel

This article was originally delivered as a contribution to a conversazione held in 2005 at the Melbourne University Law School in which judges, legal academics, journalists and others discussed issues of ‘judicial activism’. Developing ideas expressed in his 2003 Hamlyn Lectures on the same topic, the author asserts that creativity has always been part of the judicial function and duty in common law countries. He illustrates this statement by reference to the Australian Communist Party Case, and specifically the reasons of Dixon J, often cited as the exemplar of judicial restraint. He suggests that ‘judicial activism’ has become code language for denouncing important judicial decisions with which conservative critics disagree. By reference to High Court decisions on the meaning of ‘jury’ in s 80 of the Australian Constitution and cases on constitutional free speech, legal defence of criminal accused and native title, he explains the necessities and justifications of some judicial creativity. He illustrates the dangers of a mind - lock of strict textualism and the futility of media and political bullying of judges who simply do their duty. Finally he calls for greater civility in the language of discourse on the proper limits of judicial decision - making.

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