Chapter 8 Flashcards
Why does the judiciary have no democratic mandate
The judiciary is the only arm not elected, and because of this it has no democratic mandate
If the judiciary has no democratic mandate, where does it derive it’s authority from?
Numerous sources of power: constitution (chapter 3), Judiciary act 1903, common law, long established norms of how judicial decisions are made, Accountability through appeals, tradition and heritage, authority of courts is always subject to that of parliament or judicial power < legislative power
What reasons for the people having more trust in the judiciary than the other two arms of government
- dispassionate character
- traditional heritage
- politically neutral
What is the significance of s71 of the Constitution
3 functions:
- creates high court
- Allows for the creation of federal court hiearchy (Family law act 1975 created federal family court) (Fed. Magistrates act 1999 created Fed. Mag. court)
- Permits cross-vesting of judicial power
What is cross-vesting?
Cross-vesting is where parliament invests other courts with federal jurisdiction, so state court can rule in area’s of federal law, mostly for convenience (EG. Jurisdiction of Courts act 1987 gives courts some federal power)
Outline 2 ways in which s72 guarantees judicial independence.
- Executive appoints, but only parliament removes, judges on the grounds of proven misconduct or integrity
- The executive cannot reduce judges pay’
Explain what is meant by the terms ‘appellate’ and ‘original’ jurisdiction
Appellate jurisdiction refers to the power of a court to review the decision of lower courts, and to overturn or endorse them
Original jurisdiction referes to the power of a court to hear cases in the ‘court of first instance’
Outline the appellate jurisdiction of the High Court uner s73
s73 grants the HC the power to hear appeals on all civil and criminal matters arising from lower courts throughout states.
Is there an automatic right of appeal to the HC? explain
No, because 35A of Judiciary Act 1903 sets the circumstances under which Special Leave to Appeal is given, which are misscarriage of justice, question of law, conflict between courts
What are the 2 main roles of the HC
Determining constitutional cases, Hearing appeals, some of which may lead to new common law
What’s the difference between ‘justiciable’ and ‘non-justiciable’
J-can be heard in court Eg. constitutional interpretations
NJ- cannot be heard in court Eg. Westminster Conventions
What are examples of how disputes can arise over the meaning of words in the constitution
Eg. Workchoices 2006, controversy over the interpretations of ‘corporations power’ under s51XX, court found in favour of the legislation
Explain why the parliament must operate within the limits of its’ ‘heads of power’
Must operate within the powers constitution gives it, as can be challenged in the HC if they are ultra vises, which embarasses gov. and stops legislation from passing
Outline the significance of the Williams no 2 case
Williams no 2 (2014), Ronald Williams challenged the governments power to amend the Financial Management and Accountability Act 1997, the HC held that laws were invalid and beyond the power in s51 xxx3A because chaplains did not give ‘benefits to students’
Significant because it effectively placed a limit on Com. power by stating they must act within heads of power
Outline significance of William no 1 case
Executive power is not limited in the same way as ‘heads of power,’ yet it can be limited by statutes and HC. Govt. used s61 to fund chaplains in QLD (executive perogative). The HC ruled that this power could be authorized by parliament, and therefore, the fact that it wasn’t legislated by parliament, means that the executive couldn’t and therefore couldn’t exercise their perogative under s61.
Define: Doctrine of Reserved Powers
When HC interprets concurrent powers it does so in a narrow sense that preserved the power of the states and limited the power of the commonwealth to legislate in areas of shared powers
Define: Doctrine of Implied Immunities of Instrumentalites
The DIII was a common law doctrine which preserved state powers. It prevented the Commonwealth from interfering with State residual powers
Explain a case which defended State power
Railway Servants Case 1906
Over the right of the Commonwealth to legislate working conditions
WA v Com, s51(xxxv)
Why are state powers non-justiciable
State powers are unspecified and unwritten, which means HC cannot interpet them
Explain the significance of the Engineers Case 1920
Dispute between Sawmill union and WA govt, union was federal so the Commonwealth legislated in the area using s51(xxxv), HC agreed, wiping away Doctrine of Implied Immunities of Instrumentalities
Explain the signigicane of the 1942 Uniform Tax Case
s51(ii), Uniform Tax 1942 consisted of 4 statutes which were challenged by the states. The HC found that these were constitutional because the defense powers were much more important in war. Income tax took away a large portion of state income, which made them rely on grants much more
How did the HC’s broader interpretation of s109 increase Commonwealth power
s109 states that Commonwealth law > state law, and it wins within the inconsistency. Broadly interpreting this meant that the entire state statute is invalidated. This doctrine overturn Doctrine of Reserved Powers
Has the HC sought to limit the discretion of the Commonwealth government under s96? What has been the effect of this approach?
No, the section says ‘as it thinks fit’, which is very broad. The result are significantly diminished residual and concurrent state powers
What are two examples of cases that have limited Commonwealth power
State Banking case (1947)
Bank nationalisation case (1948)
Why has the external affairs power become more signifcant
s51(xxix), allows commonwealth to sign international treaties, and ratify them by passing statutes, essentially giving authority to make agreements law, and override state laws that are in conflict with them
Explain 2 cases relating the to the external affairs power
Koowarta case 1982, Koowarta wanted to buy land, the gov. refused, which conflicted with the Racial Discriminatory Act 1975 which was passed using the external affairs power after UN convention
Tasmanian Dam 1983, Tasmania wanted to dam a river, the commonwealth said no
Explain a case which relates to financial powers
Ha case 1997, state had levied fees on some businesses, which were deemed ‘excise’ and under s90 thats exclusively commonwealth, which diminished state financial independence
Why is s51 (xx) so significant
Corporations power, gives the commonwealth the power to legislate around any incorporated body
Explain a case relating to s51 (xx)
Work Choices 2006, Commonwealth legislated around states industrial relations powers. States lost
What are 2 problems that having an executive within majority party causes
- controls legislative agenda
2. Potential politicisation of executive decision-making
Explain how the HC can discover meanings within the Constitution and give 2 examples
Constitution may not explicitly state laws, as such HC must interpret spirit of the constitution. Eg. right to vote is implied in s24 and s7. Eg. federal nature and spirit of constitution is recognised by the HC, which suggests the states should remain an important part of Australian Government.
Explain the Norrie case and how it created common law
Norrie is a 3rd gender, who wished to register as ‘non-specific’ sex, which the QLD gov. refused, after appealing to the HC, it was found the legislation only allows for 2 sexes, however the registrar was simply responsible for recording the information given to them by the public, not to decide on the moral and social judgements about surgery.
What is judicial discretion
Freedom of a judge to use their experience or understanding to interpret law
Distinguish between the two main categories of judicial interpretation
- legalism, the use of statutes and interpretation rules to interpret law
- Activism, the broader social impact and the intention of a law is heavily considered.
