4.1.09b Judicial Conservatism & Judicial Activism

Which of the following is a phrase or word that is associated with judicial activism?

• Strict interpretation
• Restraint
• Conservative
• Progressive

What is the best definition for judicial activism?

• When judges use a range of methods to lobby parliament to change the law.
• When judges are generally active in law reform.
• When judges adopt a narrow interpretation of the law when interpreting statutes and deciding cases.
• When judges consider a range of social and political factors when interpreting statutes and deciding cases.

Which of the following is an example of a case where the High Court was considered to be judicially active?

• Mabo v Queensland (No. 2)
• State Government Insurance Commission v Trigwell
• Donoghue v Stevenson
• Re Gallagher

What was so significant about the High Court’s decision in the Timber Creek case?

• The High Court held that Aboriginal Australians are not ‘aliens’ for the purposes of the Australian Constitution and therefore could not be deported.
• The High Court held that Aboriginal Australians hold native title to land in Australia.
• The High Court recognised the cultural and spiritual harm caused by the loss of spiritual connection to the land and ordered compensation because of the harm suffered.
• The High Court held that the Australian people have an implied freedom of political communication

True or false: You can be asked a question about judicial activism in relation to a hypothetical case you have never studied before.

• True – the exam can ask you about any hypothetical scenario.
• False – you can only be asked about actual cases or scenarios.
• False – you can only be asked about hypothetical cases you have studied before.
• False – you can also be asked about actual cases.

What is the best definition for judicial conservatism?

• When judges consider a range of social and political factors when they are interpreting statutes and deciding cases.
• When judges adopt a narrow interpretation of the law when they are interpreting statutes and deciding cases.
• When judges vote for conservative parties.
• When judges are generally Caucasian, male and older.

The case of State Government Insurance Commission v Trigwell is an example of:

• judicial activism.
• overruling a precedent.
• distinguishing a precedent.
• judicial conservatism.

Which of the following is a phrase or word that is associated with judicial conservatism?

• Consideration of social views
• Judicial restraint
• Strict interpretation
• Progressiveness

What argument may be raised to support the view that judges should act conservatively when deciding cases and interpreting statutes?

• Judges are not elected and therefore law-making should be left to parliament.
• Judges are there to administer the law – the role of correcting the laws should be left to parliament.
• Acting conservatively will help to maintain the confidence of the courts and the parties.
• All options are correct.

‘Distinguish between judicial conservatism and judicial activism.’ What is this question asking you to do?

• Describe judicial conservatism and judicial activism in detail.
• Explain the differences between judicial conservatism and judicial activism.
• Explain the similarities and differences between judicial conservatism and judicial activism.
• Give a reasoned explanation of which one is better, with arguments to support the response.