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NCJRS Abstract

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NCJ Number: 201092 Find in a Library
Title: Have the Judges Gone Too Far? Courts Versus the People
Journal: Judicial Officers' Bulletin  Volume:15  Issue:4  Dated:May 2003  Pages:25-28,32
Author(s): John Perry
Date Published: May 2003
Page Count: 5
Sponsoring Agency: Judicial Cmssn of New South Wales
Sydney NSW, 2000
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: Australia
Annotation: This document discusses judicial activism in Australian courts and compares this situation with that of the United Kingdom.
Abstract: Strong reactions have often been provoked by the perceived incursions by judges upon the domain of Parliament. Feelings are likely to run high on behalf of the public and political side of the boundary when it is suggested that judges have crossed it. But the judges have not gone far enough. The pubic will have to get used to the fact that human rights jurisprudence should be more clearly recognized and developed by the courts. The courts have regarded international human rights instruments as having the important function of being a legitimate and important influence on the development of common law. The reluctance of Australian courts, other than the High Court, to embrace these principles and make greater use of international human rights jurisprudence is a product of a number of factors. The first is that Australian jurisprudence has adopted a culture of suspicion of broadly expressed international instruments. Another factor is that judges do not read international instruments. The Human Rights Act 1998 (HRA) does not give the courts power to strike down legislation that is incompatible with the European Convention on Human Rights (ECHR). It has been structured so that the sovereignty of Parliament is recognized and maintained. Another major feature of the HRA is its provisions relating to public authorities. Public authority is expressly defined to include a court or tribunal. This gives a broader right of review of administrative decisions, which otherwise would be reviewable only as to questions of due process or error of law. The impact on United Kingdom law has been less drastic than one might think. The number of cases that have been brought simply by reference to those provisions is small. The passage of the HRA does not mean that longstanding principles of the common law will be disposed of and replaced with uncertain expressions of human rights values. A careful re-examination of common law precepts against the ECHR enables the courts to reformulate the precepts so that they are more attuned to the values of contemporary society. 19 endnotes
Main Term(s): Australia; Judicial activism
Index Term(s): Accountability; Court personnel attitudes; Discretionary decisions; Judicial attitudes; Judicial independence; Judicial performance evaluation; Law reform
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