Chapter Eight: Power of the High Court

Question 1

Judicial Power

Answer 1

The power to determine rights and duties by applying and interpreting law, usually in order to resolve a dispute.

Question 2

Cross Vesting

Answer 2

Allowed by section seventy-one of the constitution, cross vesting allows the Parliament to give state courts the ability to exercise federal jurisdiction in certain matters, reducing the hassle involved in setting up federal court hierarchies in states. The 1987 Jurisdiction of Courts Act is an example of legislation passed by the Commonwealth allowing cross vesting.

Question 3

Original Jurisdiction

Answer 3

The power of a court to hear cases in a ‘court of first instance’. Courts which have a specific jurisdiction will hear cases in that area of law for the first time, analyse the facts and then come to a decision. If no precedence exists for that type of case then precedence is created and is considered binding to all lower courts. If one or both of the parties is dissatisfied with the judicial process then they may appeal to a higher court.

Question 4

Appellate Jurisdiction

Answer 4

Appellate jurisdiction refers to the power of a court being able to hear cases from a lower court that have been appealed up. Only courts with appellate jurisdiction can create common law, since their precedence is binding onto another court.

Question 5

Special Leave to Appeal

Answer 5

An order granted by the High Court which allows an appealed case to be heard in the High Court. Under s73 Parliament has the right to decide which appeals the High Court may hear, and this is established under the 1903 Judiciary Act.

Question 6

Dead Letter

Answer 6

A section of law which has become completely irrelevant or outdated, such as section seventy-four of the constitution.

Question 7

Inter se cases

Answer 7

Inter se cases are cases between different levels of government. The 1942 Uniform Tax case in an example of an inter se case.

Question 8

Writ of Mandamus

Answer 8

A civil remedy that can compel a specific government official to do something.

Question 9

Prohibitions and Injunctions

Answer 9

Civil remedies that can prevent a government from doing something.

Question 10

Justiciable

Answer 10

Principles or rules that can be adjudicated by a court, the constitution for example is justiciable by the High Court because it is a written enumerated document.

Question 11

Non-Justiciable

Answer 11

Principles or rules that cannot be adjudicated by the High Court, Westminster Conventions for example are non-justiciable because they are not listed in a document with legal authority.

Question 12

Landmark Case

Answer 12

A landmark case is a case that makes a significant impact in law or on power within a system of government. They can be either constitution cases or common law cases, for example Tasmanian Dams 1983 was a landmark constitutional case and Mabo 1992 was a landmark common law case.

Question 13

Heads of Power

Answer 13

The enumerated justiciable powers granted to the Commonwealth in section 51 and elsewhere of the constitution. The Commonwealth may only legislate with respect to these powers.

Question 14

Ultra Vires

Answer 14

If the High Court finds that a statute is beyond the Parliament s heads of power then it will strike the law down. Laws that are struck down like this are called ‘ultra vires’.

Question 15

Judicial Discretion

Answer 15

Judicial discretion is the un-avoidable human factor in the decision of any judge, it allows judges freedom in using their own understanding of society or law to interpret statues and precedents.

Question 16

Explain why the judiciary has no democratic mandate

Answer 16

The judiciary cannot claim a democratic mandate because it is not directly or indirectly elected by the people. As such it can never claim to represent the people or act on their behalf.

Question 17

Where does the judiciary draw its sources of authority from?

Answer 17

• The Constitution- The constitution creates the High Court through section 71 and outlines its jurisdiction, giving it authority on behalf of the house of commons
• The Judiciary Act 1903- The statute passed in Parliament which sets out the legal framework for the courts
• The common law- A large body of precedence which guides the exercise of contemporary judicial power
• Norms and maxims- Long established legal practices such as stare decisis, the doctrine of precedence, the principle of natural justice and rules of interpretation
• Accountability through appeals
• Tradition and heritage- The judiciary has a long tradition of upholding justice, it has created fundamental principles such as Habeas Corpus

Question 18

How is the principle of popular sovereignty upheld in the judicial system?

Answer 18

The Parliament is sovereign to the people, therefore it should have the ultimate lawmaking authority over the judiciary. Thus, any law that is created by the High Court can be overruled by a statute from the Parliament , with the sole exception of constitutional law.

Question 19

What reasons are there to suggest that people have more ‘trust’ in the judiciary?

Answer 19

Despite being the only unelected part of government, the judiciary is usually the most well-liked by the people. This is due to a number of reasons, the judiciary usually aren’t in the media spotlight as much as politicians are and their actions are made irrespective of the current political scene. They also have a long-standing tradition of providing justice, there aren’t a lot of black marks against the judiciary like their might be against politicians.

Question 20

What are the functions of section 71 of the constitution?

Answer 20

• Creates the High Court of Australia, vesting the judicial power of the Commonwealth into the high court and giving it authority under the constitution and the Queen
• Allows for the creation of a federal court hierarchy, section seventy-one gives the Parliament the power to create other courts in the federal hierarchy. Until the 1970s, cross vesting was used to relieve the burden on federal jurisdiction, but increased workload led to the passing of the Federal Court of Australia act 1976 which was the first federal court with general federal jurisdiction to relieve the power of the High Court. In 1975, the Family Court of Australia was also created and the states referred their jurisdiction over family law to this federal court except WA. The Family Court of Australia and the Federal Court of Australia are both superior courts, they are equivalent in rank to the state Supreme Courts. In 1999 the Federal Magistrates court was created in order to relieve the load of the Federal Court of Australia, and in 2013 it was re-named to the Federal Circuit Court of Australia.
• Permits the cross-vesting of judicial power, decreasing the burden on the High Court and other federal courts.

Question 21

How does section 72 guarantee judicial independence?

Answer 21

Section seventy-two enforces the separation of powers doctrine, it states that the executive appoints High Court judges but can only dismiss them on the grounds of ‘proven misconduct’ and ‘incapacity’. It also states that the executive cannot reduce the pay of High Court judges. This ensures that the executive cannot influence or force the decisions of the High Court in any way, and the power to remove judges relies on terms that are vague and not defined anywhere in the constitution, making it extremely hard for the executive to sack a High Court judge. Section seventy-two was amended in a referendum in 1977 to say that High Court judges must retire at the age of seventy, perhaps to reduce the issue of ‘incapacity’.

Question 22

What is the extent of the appellate jurisdiction granted to the High Court via section 73?

Answer 22

The appellate jurisdiction of the High Court is granted by section 73, giving the High Court the power to hear appeals from all civil and criminal matters in the country. It can also hear appeals from a case that was heard only by a single High Court judge. Section 73 also grants the Parliament the power to decide which appeals the High Court may here. Section 35A of the Judiciary Act 1903 set out the circumstances under which a special leave to appeal can be granted. This controls the case load of the High Court and sets out that there is no automatic right to appeal to the High Court.

Question 23

What are the conditions in which a Special Leave to Appeal can be granted by the High Court?

Answer 23

The Parliament controls the conditions in which the High Court may give out a Special Leave to Appeal. They can only be granted when:
• There is evidence that there has been a miscarriage of justice
• The is a question of law, which creates the possibility of creating new common law
• There is a conflict between courts
If the High Court rejects an application for Special Leave to Appeal then the party involved has exhausted its appellant opportunities. The High Court is the final court of appeal but not a general court of appeal because it does not have to here all appeals.

Question 24

What does section seventy-five give to the High Court?

Answer 24

Section seventy-five gives the High Court its original jurisdiction. This includes:
• Cases concerning treaties with other countries or international organizations
• Inter se cases
• Cases where a writ of mandamus, prohibition or injunction is sort against an officer of the Commonwealth

Question 25

What are the two main roles of the High Court?

Answer 25

1. Determining constitutional cases

2. Hearing appeals, some of which may lead to new common law

Question 26

How can disputes arise over the meaning of words in the constitution?

Answer 26

The constitution is made up of a number of sections which describe various aspects of the political structure, but some words or phrases in the constitution are open to interpretation. Words can be interpreted narrowly or widely, strictly or flexibly. There may also be cause to argue that certain words of phrases imply certain things and the spirit of the constitution is as important as the literal meaning of it.

Question 27

Give an example of the High Court interpreting the heads of power of the Commonwealth

Answer 27

Williams v Commonwealth of Australia [2014] or Williams No 2 is a case which involved the High Court interpreting the heads of power of the Commonwealth. The Commonwealth providing funding for school chaplains across the country through amending legislation passed in the 1990s. Williamson challenged the Commonwealths power to amend this legislation, and the High Court held that the amended laws were ultra vires under section 51 (xxx3A) because the laws did not constitute ‘benefits to students’. Thus, the High Court interpreted the constitution and ensures that the Commonwealth was not acting out of its heads of power.

Question 28

What is meant by saying that the High Court can only act ‘ex post facto’?

Answer 28

The High Court cannot actively challenge laws passed by the Commonwealth, someone needs to bring the case against the government through the High Court. The High Court can therefore only act after the legislation has been passed, and if no party brings the case to the High Court then an unconstitutional law can still function.

Question 29

What is the significance of section 61 of the constitution?

Answer 29

Section 61 gives a very wide and vague power to the executive, stating that they executive power in ‘maintaining the execution and maintenance of the constitution and of the laws of the Commonwealth’. This power appears to be broad and excessive, but it is limited by two main factors.

1. Laws passed in Parliament
2. High Court interpretations of section 61

Question 30

Explain how Williams No 1 limited the scope of executive power under section 61

Answer 30

Originally the Commonwealth sort to fund school chaplains through the use of executive power under section 61 of the constitution. Williams challenged this use of section 61, and the High Court upheld the decision that the Commonwealth was acting unconstitutional. In the High Court’s ratio decidendi, they established new precedence which states that the Commonwealth’s executive power does not include a power to do what the Commonwealth Parliament could authorise the executive to do. This means that the executive power in section 61 does not cover anything that the Parliament could do under its heads of power.

Question 31

How can the High court ‘discover meanings’ within the constitution? Give examples of discovered meanings.

Answer 31

The High Court is capable of interpreting the entire constitution, and within the document there are several inferences that can be made which can lead to the establishment of ideas that the High Court upholds. For example, the High Court discovered the following implications:
• Implied immunities and prohibitions, drawing on inspiration from the US constitution, the Australian constitution implies a certain level of protection for state powers. The constitution has a ‘federal nature’ and aims to create a federal compact, and the powers of the states are residual and left non-justiciable so they are very difficult to take away from the states.
• Implied right to vote, section 7 and 24 both expressly state that the Senate and the House of Representatives should be chosen by the people, and according to the High Court this implies a right to vote, for otherwise how else could the Parliament be chosen by the people?
• Implied right to political communication, if the people choose the House of Representatives and the Senate, then it is implied that there needs to be political communication between the parties and the people in order for a person to make a based choice.

Question 32

How can the High Court create common law?

Answer 32

The High Court creates common law through hearing appeals in criminal or civil matters from across the country. When they hear an appeal, their decision creates new precedence or reinforced existing precedence which is binding to all other courts in the country. Thus, new common law is created.

Question 33

How did the Norrie case in NSW create new common law?

Answer 33

In 2009 Norrie sort to record her sex as ‘non-specific’ after undergoing gender re-affirmation surgery. This record was made under the Births, Deaths and Marriages Registration Act 1995 in New South Wales. The registrar initially approved the action but later stated that the act only allowed for someone to identify as male or female. Norrie appealed the decision to the New South Wales Administrative Decisions tribunal, which sided with the registrar, but Norrie again appealed this time to the Court of Appel in NSW. The Court of Appeal found that the act did allow for Norrie to be recorded as something other than male or female, the registrar then appealed this decision to the High Court in which it was granted a Special Leave to Appeal. The High court ruled that Norrie could in fact record herself as ‘non-specific’, and in doing so created Common law that recognised a third sex.

Question 34

What are the two main categories of Judicial discretion?

Answer 34

The two main categories of judicial discretion are Legalism and Activism. Literalism can be seen as a subset of legalism. They are as follows:
Literalism:
• The law is examined according strictly to how it is written. Influences from outside sources are minimal and what the law says is what the law means.
Legalism:
• Legal rules for interpretation can be uses to analyse the written word of the law, but influences from outside sources and the broader social context is limited.
Activism:
• The purpose or intention of the law is as important as the literal meaning of the words, there may implications that are found within the law that are not expressly written and the broader social impact of the law is important to be considered. The intention of the law should also be analysed in context with contemporary societal circumstances.