Judicial Independence In Australia
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Judicial independence is essential to preserve human rights and rule of law. Using examples, assess the validity of this statement.
Judicial independence is defined as judges being absolutely free from interference and intimidation by external forces. Therefore, one of its importance is to preserve human rights. In order for that to be attained, a judicial body must be removed from external influences. This is to ensure a fair trial is preserved. An example of judicial independence is reflected in Mabo Case 1 (1988). This case illustrates a fair trial by protecting and preserving the rights of the minority groups in Australia which are the aborigines by using Section 109, to override the Queensland Coast Island Declaratory Act 1985.
However, in reality, Judicial Independence is not always practiced to preserve human rights. This is usually seen in parenting disputes in the Family Court. Judges tend to be sexist and give maternal preferences as they are more sympathetic towards the child’s mother. The marriage of Harrison and Woollard 1995 illustrates an unfair judgment made by a judge. According to the case, the judge had failed to adequately grant the wishes of the children and awarded custody to the mother.
Besides that, judicial independence is essential in preserving rule of law. One of the elements of rule of law is supremacy of constitution. Supremacy of constitution is whereby the constitution is the most supreme and must be respected by all. An example of supremacy of constitution being seen is illustrated in Adban Case (1992). In this case, judicial independence managed to preserve supremacy of constitution by declaring a state statute invalid because it conflicted with the constitution which implied that there is freedom of political communication and speech.
The second element of rule of law is equality before law. Equality before law means that