High Court

Question 1

Common law decisions

Answer 1

Mabo (1992)- created native title, Wik (1996)- defined native title to extend to Commonwealth pastoral leases, Timber Creek (2019)- defined compensation for native title, Voller- defamation

Question 2

Constitutional decisions

Answer 2

Roach, Uniform tax case, Williams No 1 (s61) and No 2 (s51), Tasmanian dams (s51), Love and Thoms (s51 xix)- contemporary issue

Question 3

Roles of the high court

Answer 3

Original and appellate jurisdiction

Question 4

Original jurisdiction

Answer 4

Section 75 and 76, hearing cases for the first time, usually constitutional

Question 5

Appellate jurisdiction

Answer 5

Section 73, granted under special leave (rarely granted, around 13%)

Question 6

When can special leave be granted

Answer 6

Under section 35A of the judiciary act of 1903, special leave can be granted if the question of law is of public importance (Mabo), to resolve differences of opinion between different courts and if it interests the administration of justice (Andrew Mallard)

Question 7

Power of the High Court

Answer 7

Defining judicial power and holding independence

Question 8

Defining judicial power

Answer 8

Meaning of judicial power defined under section 71, Boilermakers (1955)- Defined judicial power as power to adjudicate, said that only Chapter III courts can exercise judicial power of the Commonwealth and that Chapter 11 courts cannot exercise any non-judicial power

Question 9

Independence of the High Court

Answer 9

High Court rulings are inferior to legislative power as parliament can abrogate common law however parliament cannot abrogate constitutional law, Section 72 means that the executive appoints judges, judge can only be removed if there is proven misbehaviour or incapacity, a judges pay cannot be diminished, judge must retire at the age of 70

Question 10

Constitutional decisions to do with legislative power

Answer 10

Cases that altered the federal balance of power: Engineers case (1920), Uniform tax cases (194 and 1957), Koowarta (1982) and Tasmanian Dams (1983), Ha and Hamond (1997), Workchoices (2006)
Cases that declared the actions of Federal Parliament ultra vires, Williams No 2 (2014), Communist Party Case (1951)

Question 11

Constitutional decisions to do with executive power

Answer 11

Williams No 1 (2012)- determined the extent of the Commonwealths executive power under section 61, Love and Thoms (2020)- determined constitutionality of executive action

Question 12

Constitutional decisions to do with implied rights

Answer 12

ACTV v CW (1992)- implied right to freedom of political communication, Roach v Electoral Commissioner (2007)- implied right to vote (s7 and s24), Rowe v Electoral Commissioner (2010)- implied right to vote, Clubb v Edwards; Preston v Avery (2019)- limiting the implied right to political communication based on proportionality

Question 13

Contemporary issue to do with legal power

Answer 13

Voller (2021)- High Court found that appellants were publishers of third-party comments meaning they could be sued for comments left and not moderated on their page, Currently reforms occurring in NSW, SA and Vic, Serious harm test requiring the plaintiff to prove the defamatory matter has caused serious harm to try filter out trivial and vexatious defamation claims, Defence of public interest journalism- defence can argue against the defamation charged if they prove that the matter concerns an issue of public interest and that the defendant reasonably believed that the publication was in the public interest