Abstract
Compared with the United States, very little research has been undertaken in Australia on its judicial process and its relationship to the wider political order of Australian society. However, even internationally, the study of judicial politics is in an under-developed state.1 In view of this dearth of available Australian empirical research, this chapter will be traversing largely unchartered ground. Having said this, it should be pointed out that the politicisation and the political role of Australian judges and courts has been a subject of considerable public interest in recent years in Australia. One reason for this has been the frequent use of judges to head Royal Commissions of Inquiry to investigate what are often politically quite sensitive issues. Another has been the recent series of inquiries regarding the appointment or the removal of various state court magistrates in New South Wales as well as the inquiry into the possible misbehaviour of a federal High Court judge and a state intermediate court judge in New South Wales. With all the attendant publicity which has been generated by these scandals it is regrettable that there is so little systematically researched Australian empirical material to draw upon in respect to what we might call the politics of the judiciary. Nevertheless, a few broad outlines and patterns may be discerned.
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Notes
See P. Robertshaw, ‘Judicial Politics within the State’, International Journal of the Sociology of Law, 8 (1980).
See generally F. G. Brennan, ‘New Growth in the Law — The Judicial Contribution’, Monash Law Review, 6 (1976)
J. Goldring, ‘Business, Law and Public Administration’, in R. Tomasic (ed.), Business Regulation in Australia (Sydney: Commerce Clearing House (Australia) 1984
A. N. Hall, ‘Administrative Review before the Administrative Appeals Tribunal — A Fresh Approach to Dispute Resolution?’ Federal Law Review, 12 (1981)
and M. D. Kirby, ‘Administrative Law Reform in Action’, University of New South Wales Law Journal, 2 (1978)
M. D. Kirby, ‘Administrative Review: Beyond the Frontier marked “Policy — Lawyers Keep Out”’, Federal Law Review, 12 (1981).
K. A. Ziegert, ‘The Limits of Family Law: A Sociolegal Assessment’, Legal Service Bulletin, 9 (1984).
J. Sutton, Court Statistics 1982 (Sydney: NSW Bureau of Crime Statistics and Research, Department of Attorney General, NSW Government Printing Office, 1983), p. 55.
J. Crawford, Australian Courts of Law (Melbourne: Oxford University Press, 1982), p. 258.
D. J. McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981)
R. Douglas, et al., Guilty, Your Worship: A Study of Victoria’s Magistrates’ Courts (Melbourne: Legal Studies Department of La Trobe University, 1980), p. 40.
J. B. Hirst, Convict Society and its Enemies — A History of Early New South Wales (Sydney: George Allen and Unwin, 1983).
J. M. Bennett, A History of the Supreme Court of New South Wales (Sydney: The Law Book Co., 1974), p. 218.
Sir H. Gibbs, ‘The State of the Australian Judicature’, The Australian Law Journal, 55 (1981).
J. Slee, ‘Judges threaten us to ban circuit work in Country’, Sydney Morning Herald, 2 December 1981, p. 3.
J. Slee, ‘Judge says long court delays must stop’, Sydney Morning Herald, 16 August 1982, p. 3.
Quoted in T. Storey, ‘Political pressure on courts worries a retiring judge’, Sydney Morning Herald, 30 October, 1984, p. 2.
Also see J. Falvey, ‘Judge slams erosion of independence’, The Weekend Australian, 20–21 October 1984.
P. B. Toose, ‘The Appointment of Judges to Commissions of Enquiry and other Extra-Judicial Duties’, in Judicial Essays (Sydney: The Law Foundation of New South Wales, 1975), p. 57.
Quoted in J. Slee, ‘Judges’ role questioned after Sinclair attack’, Sydney Morning Herald, 3 March 1984, p. 4.
See generally A. E.-S. Tay and E. Kamenka (eds), Law-Making in Australia (Melbourne: Edward Arnold, 1980).
G. J. Samuels, Review of Tay and Kamenka, Law-Making in Bulletin of the Australian Society of Legal Philosophy, 17 (1980), p. 33.
Attorney General’s Department, Symposium on Statutory Interpretation (Canberra: Australian Government Printing Office, 1983), 39–40.
J. Goldring, ‘Initial Reactions to the Dam Case: Dam or Floodgates?’ Legal Services Bulletin, 8 (1983), p. 158.
J. Dargaville, ‘Staples makes bitter attack’, The Weekend Australian, February 14–15, 1981, p. 3.
See M. Jacobs, ‘Kirby calls for ratification of Appeals Tribunal’s role’, Australian Financial Review, 20 July 1981 and
V. Blunden, ‘Immigration case to High Court’, Sydney Morning Herald, 25 July 1981, p. 5.
See further M. Armstrong, Broadcasting Law and Policy in Australia (Sydney: Butterworths, 1982) and
G. Walsh, ‘Broadcasting tribunal in a bind’, The Bulletin, 25 September 1984.
See, for example, K. D. Boyum and L. Mather, Empirical Theories about Courts (New York: Longman, 1983).
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© 1988 Jerold L. Waltman and Kenneth M. Holland
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Tomasic, R. (1988). The Courts in Australia. In: Waltman, J.L., Holland, K.M. (eds) The Political Role of Law Courts in Modern Democracies. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-19081-2_3
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