A common cry is that the judicial, rather than interpreting the constitution, is activist and making judgements that are more legislative than juridical. The judicial is treated as a specialist position and given tenure to hide it away from political or populist influence. Unfortunately the judicial often takes matters into its own interpretive hands and expands the power of those that appoint them.
There is very little check and balance on the Australian Judicial branch. Since 1986 the High Court of Australia has been the highest court in the country, displacing the Privy Council in the United Kingdom as the highest court of appeal. Since 1968 the High Court of Australia had been the highest court of appeal on constitutional and federal issues.
In Australia the Prime Minister or Premier appoint Justices without oversight beyond the Executive Cabinet. This is in contrast to the stronger checks and balances in the US system where the Executive recommends a judge/justice to the Legislative who must then approve it.
This is a simple check on Executive stupidity and
political appointments
. In the Australian form of Westminster separation of powers demands that at the least the upper-houses (Senate and Councils) have no members of the Executive Cabinet in them, making them purely Legislative.
The Executive Cabinet would be required to recommend judicial appointments to the Senate/Councils where they would need to be approved by majority after public debate on the appointment.
Lionel Murphy changed Judicial doctrine in the Australian High Court quite drastically, believing that it was up to the High Court to make the Australian Constitution a living breathing document. This is in part because the Australian Constitution is poorly written and almost impossible to change under the referendum requirements.
It is also part of another doctrine that has infected Australian federalism since its inception of entropic and dynamic collapse of all power to Canberra. The Judicial has aided, abetted and accelerated this process.
As
adam commented
, this has been achieved by seeking obtuse nuance in what is clear constitutional language;
What's insidious about the constitution being changed through common law, eg in the US, is that the relatively clear language of the original document is interpreted to become a term of art. Eventually the succession of rulings can become so distant from the original text that to compare them side by side is an exercise in absurdity or even deconstruction. The recent US ruling on eminent domain seems the perfect example of this to me. This is also what's behind the US doctrine of originating intent. I'm not sure whether the court is able to heal these rifts itself.So how do you save the judicial from its own over-reach? The Constitution represents the limits on Executive, Legislative and Judicial authority, which the Judicial is the final interpreter of; but it contains few limitations on the Judicial ability to act. Australian justices are required to retire at seventy-five, while in the US they just die on the job. In a federal system, federalist over-reach is supposed to be stopped by the unitary components - the states. The Senate is composed of state membership, but political parties and party discipline have corrupted that check and balance on the federalist system. Yet constitutional challenges to legislation have often involved a majority, or near majority, of states. For instance the challenge to Workchoices comes from NSW, Western Australia and Tasmania. Is it possible that a check and balance on poor Judicial performance by a Justice, such as one that is opposed to a strict reading of the constitution, and who brings anti-federalist interpretations can have their position on the High Court challenged by the states. This could act as a Judicial form of impeachment that would require a majority of states and state parliaments to pass legislation requiring a Justice's removal. There would be the fear that this would politicise the Judicial arm of federal government but since most of the appointments to the High Court are political rather than based on merit or specialist history, then this is not necessarily something that is not occurring already. This check and balance would be that tenure can be revoked by the states.
