Rights discourse and the politics of 'judicial activism'

Stream: Panel 38 - Australian Politics / Media & Politics: Politics and Rights
Date: Tuesday, 27 September 2016
Time: 2.00 pm – 3.30 pm


Australia saw the advent of a fierce debate in the 1990s about the alleged 'judicial activism' of the High Court in recognising certain implied rights in the Constitution. The debate has been seen as reflecting the Mason Court’s ‘dynamic’ or ‘policy-oriented’ approach to constitutional interpretation, and brought into question the limits of judicial review in the Australian context. This paper provides a brief assessment of the 'activism' debate in Australia as it currently stands, arguing that an understanding of ‘judicial activism’ as descriptor of judicial behaviour provides an incomplete explanation of the ferocity of the debate that has arisen since the 1990s. It argues that the ‘judicial activism’ descriptor can be better seen as a part of a wider campaign to discredit certain policy outcomes in the 1990s, as opposed to representing a critique of constitutional rights recognition in Australia.


Tanya Josev (Presenter), University of Melbourne
Dr Tanya Josev is a lecturer in the Melbourne Law School, researching in Australian and American politico-legal history. Her PhD, an intellectual and political history of 'judicial activism' in the United States and Australia, was awarded the Dennis-Wettenhall Prize for the best thesis in Australian history in 2015 and will be published as a book by Federation Press in 2017. Her ongoing research concerns the evolution of the binary understanding of the judicial role as involving 'activism' and 'restraint' across various common law jurisdictions. Tanya was formerly a lawyer at Allens and an associate in the Federal Court of Australia.