Ch 6: Judicial Power

Question 1

What is the history and purpose of the High Court?

Answer 1

• established in 1903
• set up in Ch 3 of the Constitution
• jurisdiction
  
  • determining appeals from decisions of any Australian court both federal and stsyr
  • interpretation of the Constitution - shifting meaning via informal change
  • until 1986, Imperial Privy Council in London had apellate jurisdiction from s74 which was overturned by the Australian Acts

Question 2

What is the role and powers of the High Court?

Answer 2

• Australia’s superior court - at the apex of Australia’s court hierarchy
• original jurisdiction: on disputes relating to the interpretation of the Constitution and over other matters in s75
• apellate jurisdication: over all other Australian law
• can decide what is hears, other than constitutional matters. Special leave to appeal - grounds set out in the CW Judiciary Act is required to have cases heard for all matters in their apellate jurisdiction
• the decision of the HCA invalidating any State/CW laws on constitutional grounds is final, consequently HC Justices have significan power
• HCA redefines meaning of the Constitution, consequently, the HC’s decisions have significant political impact

Question 3

What are the relevant constitutional sections to the HCA?

Answer 3

s71

• establishes HCA and power

s72

• GG/Parliament appointment + tenure of HC judges, term length +retirement (70 years), salary

s73

• apellate jurisdiction

s75

• original jurisdiction

s76

• additional orginial jurisdiction

Question 4

What are distinct features of the courts?

Answer 4

• court judgements directly involve only the parties to a dispute and apply existing rules to past conduct, while statutes passed by parliament set general rules that apply to everyone from the day a new law is proclaimed
• judicial decisions are expected to be authorative, while political policy should be responsive to the democratically expressed will of the people
• authority comes from their basis in the law and the application of processes of natural justice

Question 5

What is statutory interpretation?

Answer 5

the determination of the meaning of an Act of parliament before the court can apply it to a case (declare the law). Where a statute is ambiguous and relatively current, courts will apply its words literally. If interpretation is required a court will consult established authorities and legal principles in determining the meaning of the act

Question 6

What is administrative law?

Answer 6

body of law dealing with the rules regarding the hearings of govt. administrative agencies i.e. internal appeal tribunals. Executive officers rely on detailed regulations and bylaws to define the laws passed by parliament. Legal judgements decide whether such regulations have been correctly applied or whether they have a valid basis in statute in the first place

Question 7

What is common law and statute law?

Answer 7

common law: the law that is based on a society’s legal customs that have been incorporated into court judgements over time and reinforced through precedent

statute law: written law passed by a legislature on the state or federal level. Statutes set forth general propositions of law that courts apply to specific situations. A statute may forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society.

Question 8

What is constitutional law?

Answer 8

concerns the powers of government under these conditions

Question 9

What are the requirements that make for the independence of the judiciary?

Answer 9

1. Judges must be able to apply the law in any case without interference from legislators or from the executive
2. Judges given responsibility to hear a case cannot be directed by any other judicial officer in the process they follow or decisions they reach
3. Individuals appearing before the court may be able to appeal a decision to a higher court, but once finalised by the courts, parliament or the executive cannot overturn the application of the law in an individual case

Question 10

What are executive pardons?

Answer 10

the executive, through the GG, may pardon someone who has been convicted of an offence. A pardon cancels any action against them, i.e. a term of imprisonment, however it doesn’t reverse the original decision of the court

Question 11

What is parliamentary sovereignty?

Answer 11

a statute replaces any relevant judge-made law, it also determines the way in which courts make future judgements

Question 12

What are features of the court hierarchy?

Answer 12

doctrine of precedent: a principle of law created by a jugdment of a superior court. Precedents are applied to subsequent similar legal matters and ensures consistency while allowing law to be flexible

role of appeal: the court hierarchy allows for appeals to higher courts. Higher courts will overturn any deciions on appeal if they find that legal processes were flawed or the law wrongily applied

Question 13

What are the advantages of the court hierarchy?

Answer 13

• it provides for the existence of a court structure that can allocate cases between courts according to the legal basis of the dispute, the complecity and/or seriousness of the case and the amount claimed in the dispute
• it ensures greater consistency in judgements because lower courts must follow binding precedents set by higher courts. However, it is possible for the law to be modified i.e. to reflect changed community values through a decision of a higher court
• a hierarchy allows for the right to appeal against court decisions. The right of individuals to appeal against the decision of a court is a fundamental feature of the democratic operation of an open court system

Question 14

What is legalism and what are the advantages?

Answer 14

definition: belief of legal conservatives who set stron limits on the role of the courts

arguments for

• the separation of powers means that parliament makes laws and courts should merely apply the law parliament has made to individual cases (declare the law)
• the decsions of judges should be based on pre-existing legal norms
• judges should be guided by judicial restraint and take no regard in their decisions to changes in society

Question 15

What is activism and what are the arguments for and against?

Answer 15

definition:belief that judges have a legitimate role in law making

arguments for

• constitution is difficult to change by formal means
• judgements have resulted in change in the meaning of the Const. in line with current values, parliament sometimes to fail to resolve legal questions or bring the law up to date, leaving this task to the judiciary
• flexibility is needed to respond to the rapid economic, political and social change in Aus
• it is important that the judiciary ensures that the executive acts within the Const, performing a checks and balances on the powerful branch
• HC appears to be activist because it takes on cases of importance that are likely to be controversial and be criticised by the legislature
• HCA can’t avoid making law, creativity in the judgements of superior courts is inevitable because new legal situations arise, legislation contains ambiguity or appropriate common law precedents do not exist
• in making law, judges can legitimately consider policy based on enduring community values while still respecting legal principles and decided authorities
• concerns about the court acting as a ‘de-facto’ parliament are misplaced as the parliament can still legislate to overturn judicial decisions

arguments against

• justices are not elected and hence the HCA should not involve itself in policy formation
• in following the separation of powers means that the parliament makes laws and the courts should merely apply the law to individual cases
• parliament is supreme in law making and important decisions i.e. Mabo should be made by legislature
• judges should be guided by judicial restraint and take no regard in their decisions to changes in society

Question 16

What is judicial review?

Answer 16

the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution.

Question 17

What is the Australian court hierarchy?

Answer 17

Australian court hierarchy consists of a variety of courts and tribunals at both the federal and state and territory levels, with the High Court being the highest court in the Australian judicial system.

Question 18

What are examples of legalist decisions?

Answer 18

Plaintiff M78/2015 v Minister of Immigration and Border Protection

• a former detainee of the Nauru detention center, (plaintiff M68) with a 10-month old child, was slated to return to Nauru, and challenged the legality of the off-shore detention process. It was contested that through the Commonwealth’s contract with Transfield Services, it funds, controls and implements the powers of detention. Allegedly, this was an infringement on the limits of constitutional power and breached s 198AHA of the Migration Act and was not supported by s 61 of the Constitution or any other valid statutory provision.
• the Commonwealth argued that the detention was supported by s 198AHA of the Migration Act, the aliens power, the external affairs power and the power referring to relations with Pacific Islands. As an alternative point, they also argued that the detention was valid under s328 of the Financial Framework Act 1997. They also alleged that the plaintiff did not have adequate legal standing to challenge the Commonwealth in the High Court.
• majority of the Court reaching the conclusion that this section authorized the Commonwealths participation, to the extent that the CW did participate, in the plaintiff’s detention. This section applies if the CW enters into an arrangement with a person or body in relation to the regional processing functions of a country. ssii provides, that the CW may take any action and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments
• is an example of judicial legalism, as the verdict in favor of the Constitution was based on the wording of the section
• the decision’s most obvious impact was that it essentially legalized off-shore detention processing for asylum seekers, creating a new common-law precedent where the Commonwealth’s Nauru detention center was authorized which many have regarded as human right abuses

Fortescue Metals Group Ltd. & Ors v. The Commonwealth of Australia (2013) ​

• Minerals Resource Rent Tax (MRRT) - 30% tax for coal and iron ore miners with mining profits greater than $75 million a year
• upheld the MRRT, ruling that the arguments forwarded by the plaintiff were insufficient to overturn the controversial tax
• Fortescue challenged the tax’s validity under the Constitution, arguing that it:
  
  • discriminated between the states contrary to s51(ii)
  • gave preference to one state over another contrary to s99
  • prevented the states from aiding mining activity under s91
  • curtailed state sovereignty contrary to the precent from the State Banking Case (1947)
• Unanimous decision that drew on precedent from Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004)
• Laws did not discriminate between one State and another (s51(ii)), neither did they give preference to one State over another (s99)
  
  • Tax doesn’t discriminate: remains at 30% irrespective of the State in which the miner operates
• example of legalism — ruling was made through the literal interpretation of the constitution, which granted the CW a broader range of power
  
  • Not activism as the law was not interpreted in a way that reflected changing values in society
• broadened the CW power by allowing more ‘categories’ to fall under the implied express powers (s51, corporation power), also gave CW another revenue raising source
• tax was removed by Lib. Gov’t

Question 19

What are examples of activist decisions?

Answer 19

Mabo (1992)

• High Court rejected the doctrine of terra nullius, in favour of the common law doctrine of Aboriginal title
• Eddie Mabo & ORS commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept. The action was brought as a test case to determine the legal rights of the Meriam people to land on islands of the Torres Strait
• in response, Labor Party enacted the Native Title Act 1993 (NTA). The NTA established the National Native Title Tribunal (NTTA) to make native title determinations in the first instance
• Mabo set a precedent in terms of common law and native title but the concept of native title has since narrowed as a response to the Mabo judgement as evidenced by the Wik (1996) and more recently Akiba (2014) decisions.

ACT v Commonwealth (1992)

Question 20

What are 2 contemporary cases that have had a wider impact on legislative or executive power?

Answer 20

Plaintiff M68/2015 v Minister of Immigration and Border Protection & ORS (2015) - legalisation of offshore processing, shift in federal balance

ACT v Commonwealth (1992) - implied rights

Mabo (1992) - native title rights

Question 21

What are 2 landmark cases that have had a wider impact on legislative and executive power?

Answer 21

Tasmanian Dams (1983) - expansion of CW power under s51 external affairs

Engineers Case (1920) - literal interpretation, limiting states by reversing judicial policy of decision making based on implied limits to CW power

Question 22

What are express and implied rights?

Answer 22

express rights: clearly and explicitly outlined in the Constitution; they are obvious in the wording of the document.

implied rights: political or civil freedoms that necessarily underlie the actual words of the constitution, but are not themselves stated directly in the Const.

Question 23

What is an example of a case reinforcing implied rights?

Answer 23

Australian Capital Television (1992)

ACT Ltd. challenged the CW’S Political Broadcasts and Political Disclosures Act (1991) that placed a ban on advertising on radio and tv during federal election campaigns

HC found the CW statute unconstitutional, it argued that s24 clearly established representative govt. which requires that parliamentary decisions were based on a free and informed decision by voters. This implied a constitutional guarantee of freedom of speech as a necessary condition of any free and informed vote

It is an example of judicial activism, where the HC looked beyond the black letter of the law to find an implied meaning of the wordsof the Constitution, as a constitutional judgement cannot be overturned by statute, thus it established a durable legal precedent

Question 24

What are examples of express rights?

Answer 24

• s51: right to property
• s80: right to jury trial for indictable offences
• s116: freedom of religion