Judicial Activism in Common Law Supreme Courts

Transcription

1 Judicial Activism in Common Law Supreme Courts Edited by BRICE DICKSON OXFORD UNIVERSITY PRESS

2 Contents List of Abbreviations Notes on Contributors Table of Cases Table of Legislation xv xvii xix xli 1. Comparing Supreme Courts 1 1. Introduction 1 2. The Main Institutional Features of Supreme Courts 3 3. The Way in which Supreme Courts Operate 7 4. The'Culture'of Common Law Jurisdictions An Outline of Subsequent Chapters 'Restrained Activism'in the High Court of Australia Introduction Institutional Features of the High Court 21 Federal Origins 21 Jurisdiction 21 Appointment and Removal of Judges 23 Caseload and Decision-making Practice 24 Judicial Review, Human Rights and Separation of Powers Debate about Judicial Activism in the High Court 27 The Competing Normative Claims of Dixon and Mason 27 Sir Owen Dixon's Approach to the Judicial Function 27 Sir Anthony Mason's Approach to the Judicial Function 29 The Current Debate: Kirby and Heydon The Mason Court 32 Overview of the Mason Court 32 Common Law Cases: Mabo, Dietrich, and Wik 34 Mabo v Queensland (No 2) and Native Title to Land 34 Dietrich v The Queen 38 Wik and Capital C Conservatives 41 Constitutional Cases: ACTVand Leeth AA ACTVv Commonwealth and Freedom of Political Communication 46 Leeth v Commonwealth and Equality 50 Constitutional Conclusions 55

3 x Contents 5. The Gleeson Court 55 A New Species of Legalism? 55 International Law and the Gleeson Court 59 International Law and its Place in Australian Law 60 Justice Kirby: Bangalore, Al-Kateb, and Beyond 61 International Law Conclusions Conclusion: Lessons from Antipodean Activism 65 Time, Place, and Personnel 66 Fluidity and Frontiers 66 Action and Reaction Judicial Activism in the Supreme Court of Canada Introduction 6J 2. The Political Dimensions of the Judicial Activism Debate The Jurisprudential Dimensions of the Judicial Activism Debate Judicial Activism and Dialogue Between Courts and Legislatures Criminal Justice National Security Gay Rights Aboriginal and Treaty Rights Political Policies 100 Unwritten Constitutional Principles 100 Electoral Policy Social and Economic Policies 104 Sunday Closing and Mandatory Retirement Laws 105 Language and Educational Policy 106 Commercial Advertising 108 Labour Policy 110 Social Welfare Policy 112 Health Care Policy Conclusion The Supreme Court of India Introduction Historical Background and Powers of the Supreme Court 123 Jurisdiction Judicial Activism: The First Phase 125 The Beginnings 125 The Golak Nath decision 127 The Fundamental Rights Case 130 The First Phase: An Assessment 131

4 Contents xi 4. Judicial Activism: The Second Phase 133 The 'Supersessions' 133 The Emergency and the Habeas Corpus Case 134 The Second Phase: An Assessment Judicial Activism: The Third Phase 138 Post-emergency Assertiveness 138 Public Interest Litigation 141 PIL: Criticisms of Principle 144 PIL: Practical Criticisms 150 Non-PIL Activism 152 The Third Phase: An Assessment General Conclusions The Supreme Court of Ireland Introduction The Historical Background 170 The Impact of the 1937 Constitution The Function and Role of the Supreme Court 173 The Article 26 Process 174 Precedent Lack of Substantiation of Rights Use of Comparative Materials International Human Rights Instruments 182 The European Convention on Human Rights Equality 186 Gender Equality Economic and Social Rights Religion The Family 198 Deference to Family Autonomy 199 The Non-marital Family 202 Nullity of Marriage Abortion Fair Trial Rights The Law of Torts Concluding Observations Judicial Activism in Israel Introduction The Sources for Judicial Activism in Israel 219 Aharon Barak's Theory of Law 219 The Israeli Political System 221

5 xii Contents Judicial Activism and the Israeli Form of Separation ofpowers 223 The Israeli Legal System as a Mixed Legal System 223 The Structure of Israeli Courts 224 The Composition of the Judiciary and Judicial Selection Judicial Activism in the Realm of Public Law 231 Historical and Institutional Background 231 Judicial Activism in the Early Days of the State of Israel 233 Judicial Activism in Fotm Access to the High Court of Justice 234 Jurisdiction and Competence of the Court 235 Judicial Review of Legislation 235 The Jurisdiction of the High Court of Justice over the Occupied Territories 238 The Discretionary Powers of the Court 240 Standing 240 Justiciability 242 Judicial Review of the Knesset and the Attorney General 243 The Substantive Public Law Applied by the Supreme Court 246 AJudge-made Bill of Rights Freedom of Expression and Derivative Liberties 247 Judicial Activism in Matters of Security and Defence 250 The New Constitutional Jurisprudence 258 Reasonableness as the Primary Administrative Law Doctrine Judicial Activism in the Realm of Private Law 261 The Supreme Court Unchains Itself from English Common Law Precedents 262 The Broad Interpretation of the New Civil Legislation 263 The Development of Unjust Enrichment Law by the Court 266 Judicial Activism in Other Areas of Private Law Concluding Remarks Judicial Activism and New Zealand's Appellate Courts Introduction The New Zealand Constitutional Context Arguments For and Against Judicial Creativity in New Zealand The Retreat of the Privy Council The Fledgling Local Supreme Court Assessments of Judicial Activism in New Zealand Acceptable Judicial Creativity and Unacceptable Judicial Activism The Values Implicit in Plugging Constitutional and Legislative Gaps Examples of Gap-Filling in Respect of Constitutional Provisions 303

6 Contents xiii 10. Examples of Gap-Filling in Respect of Non-Constitutional Provisions Judges and Supra-National Norms Rulings of Other Common Law Supreme Courts The Altering of Previous Rulings Judicial Developments Where Parliament has Spoken Inadequately Opportunities to Develop the Law Declined by the Courts Conclusion Judicial Activism of a Special Type: South Africa's Top Courts Since Constitutional Governance: The Context 324 Court Strucrure and Judicial Attitudes Judicial Activism of a Special Type Implementing Civil and Political Rights Implementing Social and Economic Rights Redefining the Limits of Judicial Authority Developing Process and Remedies Realigning the Common Law by Importing Constitutional Values 353 The Law of Delict: Defamation 353 The Law of Delict: Wrongfulness 355 The Law of Delict: Strict Liability 357 Contract Law 358 Criminal Law Drawing Lessons Judicial Activism in the House of Lords The Distinguishing Features of the House of Lords The Orthodoxy Regarding Judicial Activism in the United Kingdom Modelling Judicial Activism Constitutional and Administrative Law Human Rights and Equality Law 379 Human Rights Law 379 Equality Law International Law Negligence and Related Claims Homicide Law Other Decisions and Concluding Remarks 411

7 xiv Contents 10. The United States of America 'Judicial Activism' and the Baseline Problem The Avoidance Canon Interpreting Statutes that Delegate Interpretive Authority Conclusion 436 Index 437