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The Forum > Article Comments > How judicial activism results in the death of the rule of law in Australia > Comments

How judicial activism results in the death of the rule of law in Australia : Comments

By Dyson Heydon, published 7/4/2003

Dyson Heydon objects to the practice of judicial activism

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Justice Heydon has stated for Dixonian 'strict legalism'. In regard to the upcoming federal legislation amending the Workplace Relations Act 1996, is 'strict legalism' the preferred approach to characterising these laws?

If so, greater attention must be shown to Dixon CJ's leading judgment in Schmidt v Attorney-General (Cth) (1961), which was followed by the entire Mason CJ court in Bourke v State Bank of NSW (1991). (NB also see Strickland v Rocla Concrete Pipes; Victorian Worckover Authority v Andrews [2005] FCA 94).

These cases provide the proposition that the parliament may not acheive indirectly, that which it cannot acheive directly. The result of these cases is that the Parliament may not legislate upon the subject of 'just terms', 'state banking' or 'state insurance' under any other head of power, beyond what it may acheive on these subjects directly.

Would this extend to legislation upon the subject of 'industrial relations'? I suggest that it would, in fact the only support for the alternative proposition is based upon the verdict in Pidoto v Victoria (1943), which is possibly the singularly most bizzare, alarming case in the Commonwealth Law Reports.

Posted by Aaron, Thursday, 27 October 2005 5:13:22 AM
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