judicial activism and conservatism

• State Government Insurance Commission v Trigwell 1979 (judicial conservatism)

  • This case exemplified how, at times, precedent is based on out-of-date conditions and circumstances that need to be changed, such as the persuasive precedent from Searle v Wallbank. 
  • However, changing this precedent is not the role of the courts, for their jurisdiction is to solve disputes, not make law. This means that they should just follow existing precedents and leave reform up to the parliament. 
• State Government Insurance Commission v Trigwell 1979

  • The court['s]...responsibility is to decide cases by applying the law to the facts as found...it is appropriately the responsibility of Parliament to decide whether the rule should be replaced
• Mabo v Queensland 1992 (judicial activism)

  The court legally recognised the right of First Nations people to make claims over their traditional land and be granted native title to land. 

  • we cannot unquestionably adhere to earlier court decisions if they lay down a rule that seriously offends the values of justice and human rights

  This case demonstrated how judges may consider that their role extends that of just applying legal precedents, but rather taking into account views on what is just and consistent with people’s rights.