Judicial entrepreneurism and the politics of institutional change: an analysis of the recent judicial role transformation in the High Court of Australia
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This dissertation explores a fundamental transformation that occurred in the High Court of Australia’s institutional role over the last twenty years. From the mid- 1980s to the late 1990s, the Court embarked on a concerted, systematic effort to recast its role within the legal and political systems. It went from operating at the margins of politics to the political storm center. Principally through watershed decisions on indigenous people's land rights and on free speech protections, the Court also shed its legal positivist traditions and ushered legal realism into its jurisprudence. Using data collected from personal interviews with over eighty senior appellate judges, including a majority of current and retired High Court Justices, the dissertation analyzes the causes and consequences of this transformation. It advances that an interplay of individual, institutional, and political factors contributed to the transformation’s genesis and its ultimate failure. Throughout, it highlights the importance of individual judges’ choices and the historical and institutional contexts that shape and constrain those choices.