Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

Abstract

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

The Principle of Legality and the Judicial Protection of Rights — Evans V New South Wales

“…Indeed it is considered a desirable state of affairs in a constitutional democracy like Australia where the separation of powers holds sway. 88 On the other ____________________________________________________________________________________ The essence of 'judicial power' is, then, the determination of legal controversies through binding and authoritative decisions. And in my view it is these core qualities that underpin the public's faith in and respect for Australian courts.…”

The Principle of Legality and the Judicial Protection of Rights — Evans V New South Wales

“…Indeed it is considered a desirable state of affairs in a constitutional democracy like Australia where the separation of powers holds sway. 88 On the other hand, the making of (rights) declarations in cases that have no legal effect on the litigating parties or the impugned law -which currently occurs under the charters operating in the ACT and Victoria -is not something that Australian courts traditionally do. 89 For example, under the Victorian Charter it is expressly provided that a judicial declaration of the rights incompatibility of legislation does not affect its validity.…”