The high court & representative government Flashcards
What are the means by which Australian Constitution acts as a check of Parliament in law-making?
- the role of the High Court
in protecting the principle of representative government - the separation of the legislative, executive and judicial powers
- the express protection of rights
checks on Parliament
Although parliament is the supreme law-making body in Australia, it does not have absolute power. The Australian Constitution prevents parliament from having absolute power by providing ‘checks’ on parliament.
(A check is a process/structure in place to decrease potential for abuse of power)
Important Sections of the constitution to the High Court:
Section 71: establishes High court
Section 76: gives the High Court the power to hear disputes arising under the Constitution or involving its interpretation.
- The High Court cannot change the words of the Constitution, but it can change what those words mean. (statutory interpretation)
What is the principle of representative gov.?
Parliament and government consists of members elected by the people to make laws on their behalf
Sections that protect rep. gov?
Section 7: sets out matters related to the Senate
Section 24: sets out matters related to the House of Representatives.
Both sections require the Commonwealth Houses of Parliament to be ‘directly chosen by the people’.
How has the High Court protected the principle of rep. gov?
- 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.
Protecting voting in elections:
High Court has made it clear: Commonwealth parliament cannot unnecessarily interfere with people’s capacity to engage in political processes.
In a series of judgments, the High Court has found that a law that interferes unreasonably with ability to vote at elections is likely to be considered invalid because the Commonwealth parliament cannot place substantial and unnecessary burdens on the rights of people to choose members of Parliament otherwise it infringes ‘directly chosen by the people.’
How has protecting voting in elections been shown in a case?
The Roach case:
Commonwealth parliament banned all convicted and sentenced prisoners from voting in elections. Roach challenged the constitutional validity of this act as section 7 says that senators must ‘be directly chosen by the people.’
The High Court ruled in her favour and prisoners sentenced less than three years now have the right to vote. This supported representative government as there is now an implied right to vote.
Protecting freedom of political communication:
The High Court has found that there is an implied right to Freedom of political communication however this is not always guaranteed as it is not an Express right.
In court rulings, Justices have all indicated that the constitution has established a system of representative government which could only operate if there was an implied right for freedom of the people to communicate about political issues. Otherwise people cannot be fully informed when electing.
There is now even a test
for establishing whether a law infringes this implied freedom
Limitations on the ability of the High Court to protect the principle of representative government?
- High Court is limited to interpreting words and phrases in the constitution (cannot add more words or phrases or expressly provide rights)
- High Court can only intervene and protect principle of representative government if person challenges a law and this requires a person with standing, costs and time to do so.
- Interpretation of High Court depends on the Justices’ approach
Strengths of the high court’s ability to protect rep. gov
- Judges are independent of the executive and the legislature, and decisions are based on appropriate legal principles rather than political pressure. The Court can seek to uphold processes that promote representative government, even if they are contrary to the will of the parliament (e.g. where parliament is seeking to restrict who can vote).
- The existence of the High Court allows individuals who have an interest in the case to bring the matter to court and have a law overturned. This reinforces that members of parliament are not above the law and the judges are able to overturn laws, including those that do not uphold the principle of representative government.
- The judges of the High Court are experienced in making decisions and have available to them a wide range of legal resources, ensuring that decisions are appropriate
- Both the High Court and the principle of representative government are contained in the Constitution and therefore can only be abolished if there is a referendum.
Weaknesses of the high court’s ability to protect rep. gov
- Judges can only rule on the facts of the case that is brought before them. They cannot create general principles of law outside the immediate case, which limits the Court’s ability to protect the principle of representative government more broadly if the case does not address issues relating to that principle.
- High Court judges cannot protect the principle of representative government unless a case is brought before them. Such cases are often complex and expensive for the ordinary person, and standing is required. Unless cases are brought, a law that does not uphold representative government may remain.
- The decision of the High Court may depend on the composition of the Court. Some justices are more conservative in their approach to the Constitution and may be reluctant to adopt a liberal approach to interpreting the Constitution.
- The interpretation of the scope of the principle, such as the ability of people to vote in elections and the extent of the freedom of political communication, could be subject to further change if a future High Court interprets the Constitution differently.
