Victorian Acts apply to people living in Victoria and to courts and judges in Victoria. Commonwealth Acts apply to the whole of Australia and to federal courts and judges. Some Acts may outline broad guidelines or principles but leave the detail to be defined in regulations, rules or local laws. See the Parliament of Victoria website for detailed information about how Parliament makes laws.
Judge-made law — known as common law — is law that has developed from judgments handed down in court. It is most often used to make decisions about areas that are not included in Acts of Parliament. The equation seemed to be that the more open the process of judicial law-making, the less restrained the voices of the critics. In contemporary discourse in Australia the expression is frequently used in a derogatory sense to describe judicial law-making, especially of constitutional dimensions, which reflects the personal usually liberal policy preferences of unelected judges rather than a neutral application by them of established principles.
In this sense, the expression implies that activist judges exceed the proper limits of the judicial function and indeed, usurp the democratic authority of elected Parliaments. A contrast is often drawn between judicial activism and the exercise of judicial restraint.
Judicial restraint is used to describe judicial reasoning that stresses the importance of following precedent and faithfully giving effect to the text of the Constitution and of statutes. It also implies that the Court should defer to the will of democratically elected Parliaments.
Despite the vehemence of the debate, the boundaries between judicial activism and judicial restraint can be surprisingly difficult to draw. Indeed, particular decisions may contain elements of both. The point can be illustrated by the recent case of Re Wakim. According to the majority, Chapter III of the Constitution contemplates that the federal courts created by Parliament will exercise jurisdiction only with respect to the matters specified in ss75 and 76 of the Constitution.
Thus the co-operative legislative scheme, which purported to empower federal courts to hear and determine matters arising under State law, could not survive constitutional scrutiny. There are three striking features about the decision in Re Wakim. First, it seems clear enough that the members of the High Court had a choice as to whether or not they would read Chapter III of the Constitution as prohibiting the conferral of State judicial power on federal courts.
In Gould v Brown, [26] decided only sixteen months before Re Wakim, the cross-vesting scheme had been upheld by an evenly divided High Court. This is not to deny that the majority was able to invoke powerful arguments rooted in the text and structure of Chapter III. The point is simply that the contrary construction of the text of the Constitution was fairly arguable.
Secondly, the invalidation of the cross-vesting scheme, which had operated successfully for nearly a decade, was certain to create considerable inconvenience to litigants and the wider community.
One consequence of the decision, for example, was that the Federal Court was held to have acted without jurisdiction in a large number of cases, both concluded and pending. Another consequence was the resurrection of potential jurisdictional disputes in federal courts, a phenomenon that the cross-vesting scheme was thought to have consigned to legal history. McHugh J acknowledged that it would be very convenient and usually less expensive and time-consuming for litigants in federal courts if those courts could deal with all litigious issues arising between the parties whether or not the issues had any federal element.
Similarly, Gleeson CJ commented that approval or disapproval of a legislative policy was 'irrelevant to a judgment as to constitutional validity'. That argument had to 'succeed or fail on its legal merits'. At one level, the majority judgments in Re Wakim exhibit characteristics commonly associated with judicial restraint.
They eschew reliance not merely on the policy preferences of individual judges, but on the community values reflected in the cooperative scheme itself. Yet at another level the judgments display features commonly associated with judicial activism. In particular, it is difficult to imagine a decision more counter-majoritarian in effect, and less deferential to the will of elected Parliaments, than Re Wakim.
After all, the Court invalidated a cooperative scheme endorsed and enacted by every democratically elected Parliament in the country, Commonwealth, State and Territory. The point of those observations is not to argue for or against the result in Re Wakim. Rather it is to emphasise the difficulty of classifying judicial reasoning by reference to conventional labels often applied to particular courts or judges.
Nonetheless, it is fair to say that the case illustrates both a departure from the policy-oriented jurisprudence of the Mason Court and a preference for what the present Chief Justice has described as the 'legalistic method' of judicial reasoning.
If the answer is no, the further question arises as to whether a legalistic method might not, as Sir Anthony Mason argued, create a risk that reasoning processes will be disguised rather than elucidated. If it is true that appellate and constitutional courts necessarily make law, a further question arises: when should they step in to change existing law and when should they stay their hand?
In other words, what are the criteria for determining the limits of the judicial law-making role? The question lies at the heart of the appellate function and of the responsibilities discharged by a Constitutional court.
Having posed the question, it must be said that there is no easy or uniform answer. Some guidelines can be offered.
The first is that there is a fundamental difference between constitutional and non-constitutional cases. When a court is being asked to invalidate State or Commonwealth legislation, it must be conscious that it is being asked to override the will of one or more elected Parliaments. Even in a country where judicial review of legislation has been accepted as axiomatic from the beginning, considerable caution must be exercised before unelected judges take on themselves the responsibility of holding that legislation infringes the Constitution and is therefore invalid.
Particularly is this so when the basis for invalidity is said to be an unexpressed limitation on legislative power to be implied in the Constitution.
That is why there is considerable force in the criticism levelled at those High Court judgments that went so far as to suggest that there was an implied guarantee of legal equality to be found in the Constitution. But for the Court to elevate equality into a constitutional imperative, without a clear textual foundation, is to implement a unilateral transfer of power from elected Parliaments to unelected courts without the endorsement of the people.
The second guideline is a corollary of the first. The courts can be considerably bolder when engaged in moulding the common law or interpreting legislation. The reason is that Parliament, if it considers the result unsound, can legislate to overturn the decision and introduce a new rule or principle. By making new law in a non-constitutional context the courts are not at risk of committing the 'counter-majoritarian' error.
This does not mean the courts are at large to transform the common law when they feel the urge to do so, nor that they are free to interpret legislation in a manner that disregards the language used by Parliament.
There are obvious constraints. Courts can only act when cases are brought before them; they cannot simply choose the issues on which they make pronouncements. University Press Scholarship Online. Sign in. Not registered? Sign up. Publications Pages Publications Pages.
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