Should Australia's Judges Resign?

Activity: Scholarly activities in Learning and Teaching reflectionPeer reviewed publication reflection


The role of the judiciary as a branch of government is an important topic in LAW540 Australian Legal System. The subject also addresses the relationship between law and justice. These are what this article is about, as it raises the question of what the response of judges should be to unjust law, using immigration detention as a specific example. The article reviews historical debates on the role of judges in Rhodesia and South Africa, and concludes that instead of resigning when confronted with unjust legislation, judges should apply modern human rights theory, coupled with 17th Century notions of the judicial role, to invalidate such legislation.

The article will be of benefit as a resource for LAW540 students as an important focus of the subject is to get students to think about the relationship between law and justice and the role performed by the three branches of government. I also presented the article as a paper at the Australasian Law Academics Association conference in July 2022 and received useful feedback on it which I will draw upon in further developing my research.

The article was published in the first half of 2022 and I was able to use it when delivering the subject in 202260, in particular in an on-line meeting devoted to the final assessment which required students to imagine that they were writing a judgment on the validity of a law enacted by a tyrannical regime.
Period01 Jan 202231 Dec 2022
Held atBusiness
Degree of RecognitionNational