Introduction

Enid Campbell; H. P. Lee

doi:10.1017/CBO9781139028431.002

Chapter 1 - Introduction

Published online by Cambridge University Press: 05 December 2012

Enid Campbell and

H. P. Lee

Show author details

Enid Campbell: Affiliation:
Monash University, Victoria
H. P. Lee: Affiliation:
Monash University, Victoria

Chapter

Book contents

Get access

Summary

[T]he judiciary is the one branch of government which is an unlikely candidate as despot; despite the great powers which it is capable of exercising, especially in the area of judicial review, it remains very much at the mercy of the other arms of government.

The Rt Hon Sir Ninian Stephen

The importance of the judiciary

In a democracy, constitutional government is ensured by a system of checks and balances. In his 1908 analysis of the notion of constitutional government, Dr Woodrow Wilson identified among the essential elements and institutions of a constitutional system, ‘[a] judiciary with substantial and independent powers, secure against all corrupting or perverting influences; secure, also, against the arbitrary authority of the government itself’. Dr Wilson went on to describe the courts as the ‘balance-wheel’ of a constitutional system. He described the importance of a judicial forum in the preservation of the liberty of the individual and the integrity of the government in the following terms:

There the individual may assert his rights; there the government must accept definition of its authority. There the individual may challenge the legality of governmental action and have it judged by the test of fundamental principles, and that test the government must abide; there the government can check the too aggressive self-assertion of the individual and establish its power upon lines which all can comprehend and heed. The constitutional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance-wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty.

Type: Chapter
Information: The Australian Judiciary , pp. 1 - 19

DOI: https://doi.org/10.1017/CBO9781139028431.002[Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Purchase

Buy Book

Buy print or eBook

References

Stephen, NSouthey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion 1982 13 Melbourne University Law Review334Google Scholar

Wilson, WConstitutional Government in the United StatesColumbia University Press 1908 24Google Scholar

1970

1992

Lee, H PThe Implied Freedom of Political CommunicationLee, H PWinterton, GAustralian Constitutional LandmarksCambridge University Press 2003CrossRef Google Scholar

Lord SteynDemocracy, the Rule of Law and the Role of Judges 2006 European Human Rights Law Review243Google Scholar

1951

Winterton, GThe Communist Party CaseLee, H PWinterton, GAustralian Constitutional LandmarksCambridge University Press 2003 108CrossRef Google Scholar

Shetreet, SJudges on TrialNorth-Holland Publishing Co 1976 3Google Scholar

Campbell, EJudges at the Bar of Parliament 1999 18 Australian Bar Review63Google Scholar

Friedland, M LA Place Apart: Judicial Independence and Accountability in CanadaCanadian Judicial Council 1995 3Google Scholar

1988

1951

1979

2000

2003

2007

2005

2010

Mason, AA New Perspective on Separation of Powers 1996 82 Canberra Bulletin of Public Administration1Google Scholar

Dicey, A VAn Introduction to the Study of the Law of the ConstitutionMacmillan 1959 202Google Scholar

Raz, JThe Rule of Law and Its Virtue 1977 93 Law Quarterly Review195Google Scholar

Thomas, J BJudicial Ethics in AustraliaLexisNexis Butterworths 2009 331Google Scholar

Campbell, EOaths and Affirmation of Public Office 2000 21 Journal of Legal History1CrossRef Google Scholar

The New Zealand Law Commission 2011

Mason, AThe Independence of the Bench, the Independence of the Bar and the Bar’s Role in the Judicial System’ 1993 10 Australian Bar Review1Google Scholar

Lamer, AThe Rule of Law and Judicial Independence: Protecting Core Values in Times of Change 1996 45 University of New Brunswick Law Journal3Google Scholar

Shetreet, SJudicial Independence and Accountability: Core Values in Liberal DemocraciesLee, H PJudiciaries in Comparative PerspectiveCambridge University Press 2011 3CrossRef Google Scholar

Shetreet, SDeschenes, JulesJudicial Independence: The Contemporary DebateMartinus Nijhoff 1985

Warren, MDoes Judicial Independence Matter? 2011 85 Australian Law Journal481Google Scholar

McGarvie, R EThe Foundations of Judicial Independence in a Modern Democracy 1991 1 Journal of Judicial Administration3Google Scholar

Shetreet, SThe Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act 1986 1987 University of New South Wales Law Journal4Google Scholar

Shetreet, SJudicial Independence and Accountability: Core Values in Liberal democraciesLee, H PJudiciaries in Comparative PerspectiveCambridge University Press 2011 3CrossRef Google Scholar

McGarvie, R EThe Foundations of Judicial Independence in a Modern Democracy 1991 1 Journal of Judicial Administration3Google Scholar

McGarvie, R EThe Ways Available to the Judicial Arm of Government to Preserve Judicial Independence 1992 1 Journal of Judicial Administration236Google Scholar

Sturgess, GChubb, PJudging the World, Law and Politics in the World’s Leading CourtsButterworths 1988 353Google Scholar

1982

Brennan, GerardPartiality and the appearance of partiality are both incompatible with the proper exercise of judicial power. The one poisons the stream of justice at its source; the other dries it up’: ‘The State of the Judicature 1998 72 Australian Law Journal33Google Scholar

Nicholson, R DJudicial Independence and Accountability – Can They Coexist? 1993 67 Australian Law Journal404Google Scholar

Lord Taylor of GosforthThe Independence of the Judiciary in a Democracy 1995 4 Asia Pacific Law Review1CrossRef Google Scholar

Kenny, SMaintaining Public Confidence in the Judiciary 1999 25 Monash University Law Review209Google Scholar

Friedland, M LA Place Apart: Judicial Independence and Accountability in CanadaCanadian Judicial Council 1995 18Google Scholar

Kirby, MAbolition of Courts and Non-reappointment of Judicial Officers 1995 12 Australian Bar Review181Google Scholar

Winterton, GJudicial Remuneration in AustraliaAustralian Institute of Judicial Administration 1995 12Google Scholar

King, L JMinimum Standards of Judicial Independence 1984 58 Australian Law Journal340Google Scholar

Malcolm, DThe Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region 1996 70 Australian Law Journal299Google Scholar

1997 15 Australian Bar Review175

Brennan, GDeclaration of Principles on Judicial Independence 1996 15 Australian Bar Review175Google Scholar

1846

1849

1984

Kirby, MJudges Under Attack 1994 38 Quadrant11Google Scholar

Kirby, MAttacks on Judges – A Universal Phenomenon 1998 72 Australian Law Journal599Google Scholar

1992 53

Australian Bar AssociationThe Independence of the Judiciary 1991 77 Victorian Bar News18Google Scholar

Commission on Separation of Powers and Judicial IndependenceAn Independent JudiciaryAmerican Bar Association 1997Google Scholar

Lord Taylor of GosforthLord Chief Justice of EnglandThe Independence of the Judiciary in a Democracy 1995 4 Asia Pacific Law Review1CrossRef Google Scholar

Kirby, MJudicial Independence in Australia Reaches a Moment of Truth 1990 13 University of New South Wales Law Journal187Google Scholar

1984

1985

Blackshield, A RThe “Murphy Affair”Scutt, J AA Radical JudgeMcCulloch Publishing 1987 248Google Scholar

Lush, GeorgeBlackburn, RichardWells, AndrewRe The Honourable Mr Justice Murphy – Ruling on Meaning of “Misbehaviour” 1986 2 Australian Bar Review203Google Scholar

Lindell, GThe Murphy Affair in RetrospectLee, H PWinterton, GAustralian Constitutional LandmarksCambridge University Press 2003Google Scholar

Lee, H PMorabito, VRemoval of Judges – The Australian Experience 1992 Singapore Journal of Legal Studies40Google Scholar

First Report of the Parliamentary Judges Commission of InquiryGovernment Printer, Brisbane 1989

Morabito, VAre Australian Judges Accountable? 1994 1 Canberra Law Review73Google Scholar

Kirby, MAbolition of Courts and Non-reappointment of Judicial Officers 1995 12 Australian Bar Review181Google Scholar

Campbell, EGroves, MAttacks on Judges under Parliamentary Privilege: A Sorry Australian Episode 2002 Public Law626Google Scholar

Brown, A JMichael Kirby – Paradoxes and PrinciplesFederation Press 2011 319Google Scholar

2008

Young, P WSuitability for the Bench 2011 85 Australian Law Journal463Google Scholar

Evans, RichardYeldham – Awkward Questions Remain 1997 32 Australian Lawyer10Google Scholar

Guide to Judicial ConductAustralasian Institute of Judicial Administration Incorporated 2007

Hayne, KLetting Justice Be Done Without the Heavens Falling 2001 Monash University Law ReviewMonash UniversityGoogle Scholar

Nicholson, R DJudicial Independence and Judicial Accountability – Can They Coexist? 1993 67 Australian Law Journal404Google Scholar