Cattanach v Melchior: Principle, Policy and Judicial Activism

Abstract

In 1997 Greg Craven commented that 'judicial activism' had become a 'more popular topic of conversation in Australia ... than at any time in its history'.¹ If anything, its popularity has increased since then, at least within the legal community.² Cattanach v Melchior, one of the lengthier and more controversial of the High Court's recent decisions, will do nothing to stem the flow.³ Not only did it present an issue of considerable novelty, the issue also carried strong moral overtones. That a number of the justices took the opportunity to 'strut their stuff'⁴may not have been unexpected. More surprising, however, is the authorship of some of the more flamboyant policy statements. Reputed legalists appear to have changed places with their supposedly more activist brethren.