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Do Parliament And The Courts Defend Individual Liberties And Democratic Values?

2193 words - 9 pages

IntroductionThis essay will discuss three main questions to enable a broad analytical review to address the topic. Firstly, it will discuss Kirby J’s comments in particular relating to judicial activism this has long been a controversial area of the judicial system with continuing debate between the executive government, the legislature and both current and past justices of the High Court in national and international spheres. The ongoing demonisation and vilification of judges by various arms of the media has added to much of the ignorance of what judicial activism is and what it sets out to achieve, therefore perpetuating the confusion that prevails. For this purpose the meaning of the term ‘judicial activism’ will be outlined and the implications and consequences it has on the system overall will be evaluated. Examples of cases where judicial activism has been implemented will be shown to illustrate the advantages and disadvantages of the process and ultimate outcomes. Secondly, this essay will discuss the Common Law system in reference to its capacity to adapt and change along with societal values and the ongoing need for judicial re-interpretation of historical constitutional text. Thus providing more evidence of the necessity of judicial activism (judicial review) albeit cautiously as we move further into the 21st century. Thirdly, the question of the ability of parliament and the courts to defend individual liberties and democratic rights, and the three branches of the government Executive, Legislature and Judiciary and their functionality will be discussed, thus further substantiating the evidence put forth.Judicial ActivismOn November 23rd 2003, Australian high court Justice M. Kirby gave a speech in Cardiff at the Hamlyn lectures on ‘Judicial Activism.’ Kirby J argued that judicial activism (revision and reformation of law) was an absolute necessity and duty of judges where interpretation of the constitutional framework of the common law system was ambiguous. He stated that the Australian constitution had been intentionally written to allow for adaptation in the future and not an historical text to be adhered to explicitly irrespective of changes in society and political philosophy over time. Kirby J states that the common law system is distinctly flexible as opposed to statutory law and explains that the process of reformation of law by judges is a complex protracted process on occasions lasting a decade. Therefore, amendments to laws cause the least amount of disruption within the system as a whole (Kirby J 2004).On the other hand, a distinct disadvantage is that legislative law has often changed suddenly and retrospectively, usually due to a situation that suddenly becomes intolerable to the ruling government. Kirby J states that common law decisions are not absolutely bound by precedent. Therefore, if during the judicial process a precedent of common law is found to be neither applicable nor decisive...

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