the High Court and representative government Flashcards
introduction to the high court and representative government
- Parliament is the supreme law-making body in Australia but does not have absolute power.
- The Australian Constitution prevents parliament from having absolute power by providing checks.
- A check on parliament is a process or structure designed to reduce the potential for the abuse of power.
- These checks ensure that parliaments do not make laws that exceed their given powers.
- The Australian Constitution includes several mechanisms that act as checks on parliament in law-making.
introduction to the High Court
- The Australian Constitution prevents the misuse of law-making power through the High Court.
- The High Court was established under Section 71 of the Australian Constitution.
- Section 71 provides the High Court with jurisdiction over matters like treaties, cases involving the Commonwealth, and disputes between states.
- Section 76 gives the High Court the power to hear disputes arising under the Constitution or involving its interpretation.
- The High Court can interpret the Constitution to determine if it grants the Commonwealth Parliament the power to make certain laws (e.g., Brislan case, Tasmanian Dam case).
- While the High Court cannot change the Constitution’s words, it can change their interpretation.
define jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases
the principles of representative government
- Australia’s parliamentary system is based on representative government, where elected members make laws on behalf of the people.
- This principle is essential to democracy; governments not representing the majority may be voted out in the next election.
- The principle of representative government is enshrined in the Australian Constitution.
- Section 7 addresses the Senate, and Section 24 addresses the House of Representatives, both requiring members to be directly chosen by the people.
- In the High Court case of Rowe v Electoral Commissioner (2010) 243 CLR 1, the requirement for members to be ‘directly chosen by the people’ was affirmed as a ‘constitutional bedrock’.
The Australian Constitution – sections 7 and 24
7 The Senate
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate …
24 The House of Representatives
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and
the number of such members shall be, as nearly as practicable, twice the number of the senators …
At times, the High Court has acted as a ‘guardian’ of the Constitution by interpreting Sections 7 and 24 to protect the principle of representative government.
- restricting the ability of Commonwealth Parliament to make laws that infringe on the rights of people to vote in elections, so that they can choose the members of parliament
- protecting the ability of people to freely communicate on political matters, so they can cast effective and informed votes when choosing their members of parliament.
These two ways in which the principle of representative government has been protected, and the
limitations of the High Court in protecting the principle,
protecting voting in elections
- The High Court has established that the Commonwealth Parliament cannot unnecessarily interfere with people’s ability to engage in the political process.
- Laws that unreasonably interfere with voting rights are likely to be declared invalid by the High Court.
- This issue was considered in the case of Roach v Electoral Commissioner.
The case of Roach v Electoral Commissioner.
- In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006, banning all convicted prisoners from voting.
- Prior to this, the 2004 Act banned prisoners serving sentences longer than three years from voting.
- Vickie Lee Roach, serving a six-year sentence, challenged the constitutional validity of both Acts.
- The High Court found the 2006 Act unconstitutional, as it was inconsistent with the representative democracy established by the Constitution.
- Sections 7 and 24 of the Constitution require that Parliament be chosen ‘directly by the people’, protecting the right to vote.
- The Court ruled that voting rights can be restricted for serious criminal misconduct but not universally for all sentenced prisoners.
- The 2004 Act was deemed valid, but the 2006 Act’s blanket ban was unconstitutional.
- Roach, despite the ruling, remained unable to vote due to her six-year sentence.
- Vickie Lee Roach, a Yuin woman, now advocates for a focus on healing rather than punishment.
what did the decision in the roach case lead to?
- The Roach case decision upholds the requirement that members of the Commonwealth Parliament must be directly chosen by the people.
- The Commonwealth can only restrict voting rights for a ‘substantial reason.’
- Subsequent High Court cases have confirmed these principles, affirming that the Commonwealth Parliament cannot impose substantial and unnecessary burdens on the right to vote.
Protecting freedom of political communication
- In 1992, the High Court established an implied freedom of political communication in the Australian Constitution through two cases: Australian Capital Television Pty Ltd v Commonwealth and Nationwide News Pty Ltd v Willis.
- Australian Capital Television challenged legislation banning political advertising on radio and television during elections, which was found invalid by the High Court for overriding the implied constitutional freedom of political communication.
- The decision was linked to the notion of representative government, which requires freedom to communicate about political issues to ensure voters are well-informed.
- Subsequent cases, like Theophanous v Herald and Weekly Times and Lange, confirmed and extended this implied freedom.
- The implied freedom is not explicitly stated in the Constitution and may be subject to change if the High Court revisits its interpretations, as suggested by Justice Steward in a 2021 case.
Since the Lange case, the test for establishing whether a law infringes on the implied freedom has since been developed and is now a three-stage test:
- Does the law effectively burden the implied freedom in its terms, operations or effect?
- If ‘yes’ to question 1, is the purpose of the law legitimate in that it is compatible with the maintenance
of representative and responsible government? - If ‘yes’ to questions 1 and 2, is the law reasonably appropriate and adapted to advance that legitimate
object in a manner consistent with the maintenance of representative and responsible government?
define implied rights
rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court
Limitations on the ability of the High Court to protect the principle of representative government
- The High Court can only interpret the existing words and phrases of the Australian Constitution and cannot add new provisions or guarantee a universal right to vote.
- The Court can only act to protect representative government when a person challenges a law, which requires standing, financial resources, and time.
- The interpretation and protection of representative government may vary depending on the composition of the High Court, with some justices being more conservative and less likely to adopt a liberal approach.
define standing
the requirement of a party to be directly affected by the issues or matters involved in a case, for the court to be able to hear and determine that case
strengths
- Judges are independent from the executive and legislature, making decisions based on legal principles rather than political pressure.
- The High Court can uphold processes that support representative government, even if they conflict with parliamentary decisions (e.g., restricting voting rights).
- The existence of the High Court allows individuals to challenge and potentially overturn laws, reinforcing that MPs are not above the law.
- High Court judges are experienced and have access to extensive legal resources, ensuring well-founded decisions.
- Both the High Court and the principle of representative government are enshrined in the Constitution and can only be abolished through a referendum.
