Case Study Solution and Lecture Notes for Judicial Activism of Mabo

Question: Describe about the main aim of Judicial Activism? Answer: Judicial Activism is based on the concept that the judges, especially of the appellate court, must alter the existing rules or principles which according to them are faulty. This shall require that the judges should be given freedom from the existing high authorities. The main aim of altering is to give importance to the social issues and values rather than giving effect to the legal principles. There is a limitation to the same where a party should not be held liable in case where he has been declared free. This was clearly stated in the case of Trigwells case stating that the land owners are not responsible for taking care of those who use highways and prevent animals to stray on highway. It was ruled that this would not be possible as in this time of such a huge traffic it cannot be managed by land owners and in case this rule was taken away and altered the land owners will have to take insurance against the third party which would be very expensive. Therefore, it was held by majo rity of courts to exercise judicial restraints and not get the law reformed. It is also said that the court should make a new rule keeping in mind the social values, which is a big question of debate. Therefore, it is said that the decisions taken by the court are based on their notions which the judges themselves believe in and hence might not speak mind of many people in the society. This was clearly illustrated in the case of Mabo v Queensland (No 2) (1992) 175 C.L.R. 1, where the values based on which the judges made a decision was not accepted by all. The question was to benefit the decision made to the native people.1 Mabo case brought about a new law into existence. Mabo case decision was highly criticised after the Wik decision in 1996 on native title and pastoral leases. This reason for such criticism was the decision which was against the interest of political, business and other parties. In the Mabo case the court held that the grant of certain pastoral leases did not remove the native title right enjoyed by the applicant to the leased lands. Many people in the industry and government were against the decision. It was stated that the High court had been involved in judicial activism. The Wik Peoples case in 1996 made statutory leases rescinded against the indigenous people. The court had observed that the statutory pastoral lease did not give exclusive possession rights on the leaseholder. In case of any dispute the statutory leases shall rescind against the indigenous people. This was highly criticised and questioned the validity of land in Australia. The court was criticised for its decision and was said to be not socially aware of the needs of people. It was then that the Howard government came out with a 10 point plan. This plan brought about certainty in the land ownership in Australia. It is to be understood that for coming to any conclusion it is very important that a proper negotiation is done to come to a settlement which shall involve compromises. Any case which is against the judicial activism generally is complemented with judicial restraint. Judicial activism is the power of the judges but it has responsibility attached to it. Judiciary is checked for all its decision, by government and public. But this would not mean that the judiciary should be undermined. They should be given enough space to make a decision. Pamela O Connor, The Wik Decision: Judicial Activism or Conventional Ruling? vol. 10, no. 2, 1997, pp. 217-236. Micheal Kurby, Judicial Activitism : Power without responsibility? No, Appropriate activism conforming to duty , (Civil Law, 2005) https://www.law.unimelb.edu.au/files/dmfile/30_2_9.pdf accessed 31 January 2015 Mabo case was such that the values given by judges were not universally accepted. Therefore, we can conclude that the judicial activism should be given less importance in the judicial process. What needs to be considered is that judicial activism should not be given importance and application with retrospective effect as the rights of the party shall be affected in lieu of correcting the law and trying to make it better. The cases which have been settled since long, the judges should not make major changes in them without being certain about the issues and its effect. This would not mean that the judges should not make any reforms but it should not come by judicial activism but by adopting judicial principles. It is rightly stated by words of King HenryV go to the ant, consider her ways and be wise. Harry Gibbs, Judicial activism and judicial restraint: where does the balance lie?, (Civil Law, 2004) www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.../59_HarryGibbs.doc accessed 31 January 2015. Bibliography: Gibbs H, Judicial activism and judicial restraint: where does the balance lie?, (Civil Law, 2004) www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.../59_HarryGibbs.doc accessed 31 January 2015 Williams G , When the umpire takes a stand, (Civil Law, 2011)https://www.theage.com.au/it-pro/when-the-umpire-takes-a-stand-20111111-1nbag.html accessed 31 January 2015 Connor P, The Wik Decision: Judicial Activism or Conventional Ruling? vol. 10, no. 2, 1997, pp. 217-236. Kurby M, Judicial Activitism : Power without responsibility? No, Appropriate activism conforming to duty , (Civil Law, 2005) https://www.law.unimelb.edu.au/files/dmfile/30_2_9.pdf accessed 31 January 2015