The Judiciary

Question 1

What two types of jurisdiction does the high court have? By what authority is the high court so powerful?

Answer 1

1/ appellate (ability to reverse) and original jurisdiction

2/ the constitution

Question 2

In what way is the court a political actor? What is the most incredible thing it can do politically

Answer 2

1/ its decisions have direct and indirect political consequences, including the nature of power relations

it can override laws and policy decisions of governments

Question 3

What are the two dimensions of constitutional interpretation

Answer 3

Liberalism and originalism

Legalism (judges are a mere conduit of justice) and ‘realism’ (judges inevitably apply discretion)

Question 4

What are the three types of human rights regimes?

Answer 4

1. Entrenched: US bill of rights, Canadian charter of rights and freedoms (1982)
2. Not entrenched: NZ bill of rights act (1990)
3. Supra-national: EU convention on Human rights

Entrenched: explicitly contained within the constitution of a country
Unentrenched: ordinary act of parliament which can be repealed by parliament

Question 5

Is rights review democratic? What are the arguments to consider for and against

Undemocratic 1
Democratic 3

Answer 5

Judges constrain the power of elected rules, thereby both stabilising and limiting democracy

Undemocratic:
- Judicialisation of politics, Judges internets rights without being held democratically accountable

Democratic:
-Pragmatically speaking, it is precisely because rights provisions are so vague that we need people to interpret them

• Rights are too important to be left to the protection of politicians with their short term thinking
• Not all the aspects of a state need to be controlled by the people, but it is the system as a whole which must be democratic

Question 6

Should a bill of rights be introduced into Australia?

consider reasons for and against

Answer 6

Against:
1/Constitutional, legislative and common law undermines the necessity for a bill of rights anyways
2/ Inflexibility of rights imposed by a bill of rights, especially those entrenched
- Constitutional amendments require the approval of both houses of the legislature and a referendum
3/ May be undemocratic as it would give unelected judges too much power over social issues (this can be attacked)

For:
Common and statute law has failed to adequately protect human rights