'Restrained Activism' in the High Court of Australia

Abstract

This chapter explains how the High Court under former Chief Justice Mason in the early 1990s was wrongly characterized as engaging in unprincipled judicial activism. It argues that such a conclusion fails to appreciate the dynamic nature of legal reasoning in a common law system. The chapter proceeds as follows. Part I outlines the institutional features of the High Court and its structural relationship with the other branches of government. Part II highlights certain distinctive features of the judicial activism debate in Australia. Part III evaluates the contribution of the Mason Court to the development of constitutional and non-constitutional law in Australia. The final part investigates the Gleeson Court and its reaction to the perceived radicalism of the Mason Court. The chapter concludes by offering some lessons from Antipodean activism.