The Role of the High Court

Question 1

What is the High Court?

Answer 1

Australia’s Highest Court, has 2 jurisdiction, resolves disputes

Question 2

Where is the High Court’s role in the division of powers mentioned in the Constitution?

Answer 2

Section 76 allows States to ask the High Court to decide if the Federal Government has acted Ultra Vires (outside of their powers).

S75 (1) High Court has jurisdiction over “all matters arising under a treaty”

Question 3

What are the two jurisdictions of the High Court?

Answer 3

Original jurisdiction and appellate jurisdiction

Question 4

What is the original jurisdiction?

Answer 4

The judges interpret the constitution to resolve disputes between the commonwealth and the states.

Question 5

How can high court rulings in the original jurisdiction be overruled?

Answer 5

Cannot be overruled by Parliament but can be overruled by itself or referendum

Question 6

How many judges are in the original jurisdiction of the High Court?

Answer 6

Full bench of the High Court, 5-7 judges

Question 7

What are the 3 different courts in the high court?

Answer 7

• High court of Australia
• Full Court of the High Court of Australia
• Full Bench of the High Court

Question 8

What happens in the High Court of Australia jurisdiction?

Answer 8

• A single justice hears relatively straight-forward matters in federal law. This could include, for example, a justice presiding in the Court of Disputed returns to hear a dispute about an irregularity alleged to have occurred at a federal election.

Question 9

What is the Full Court of the High Court of Australia?

Answer 9

• The Full Court presides with three or five justices. It usually sits with three justices to hear special leave applications regarding appeals to the Full Court. When actually hearing an appeal, the Full Court sits with five justices. It can sit with all seven justices in special cases. This Court sits in the appellate jurisdiction to hear civil and criminal appeals from the appellate divisions of all superior federal and state courts.

Question 10

What is the Full Bench of the High Court?

Answer 10

• The Full Bench sits with the seven justices in the original jurisdiction to interpret the Constitution to resolve constitutional disputes. Their actual seating position at the bench is determined according to their seniority within the court. The Chief Justice sits in the middle and remaining members sit either site with the least experienced at the ends.

Question 11

What are some examples of court cases where the high court has ruled in their original jurisdiction?

Answer 11

• Tasmanian Dams Case
• Koowarta’s Case
• Mabo No 1

Question 12

What was the Tasmanian Dams Case?

Answer 12

• The High Court has held in a number of cases that the Commonwealth can exercise the external affairs power provided the legislation puts into effect a valid obligation expressed in an international treaty the Commonwealth has signed. (EXTERNAL AFFAIRS POWER)
• A wilderness area in south-west Tasmania had been registered on the World Heritage List by Australia, pursuant to a UNESCO treaty to protect the environment, and the Commonwealth had an international obligation to protect it.
• Tasmania had passed legislation, under its residual powers, to dam the Gordon below Franklin River, affecting part of the wilderness area in question.
• The Commonwealth opposed the legislation, arguing it had the power to take such action.
• The High Court held (in a majority 4-3 decision) the Commonwealth validly enacted legislation to give effect to the conditions of an UN Convention it had signed, despite not having a prescribed head of power in relation to the environment.
• As the High Court held both the federal and state Acts were valid, it invoked the inconsistency rule in section 109 to declare the Tasmanian legislation invalid.
• The case confirmed the Commonwealth could exercise the external affairs power to enact laws in areas presumed to be the residual powers of the States, effectively giving them defacto control over the environment.
• The Commonwealth has subsequently passed a number of Acts in the areas of racial discrimination, human rights and industrial relations pursuant to the external affairs power, thereby eroding the power base of the states.

Question 13

What was the Koowarta Case?

Answer 13

• In 1975, the Commonwealth Parliament enacted the Racial Discrimination Act to incorporate into Australian law the obligations of the International Convention on the Elimination of All Forms of Racial Discrimination.
• Queensland state government policy opposed proposals for Indigenous People acquiring large tracts of land.
• Subsequently, the Queensland Minister for Lands refused to grant land title to the Winychanan people.
• John Koowarta, a member of the Winychanan people, instigated proceedings in the High Court against the Queensland Premier to have the Queensland Government’s executive action declared invalid.
• The High Court held the Racial Discrimination Act was valid, because it gave effect to the conditions of a treaty the Australian Government had signed, which it was entitled to sign under its external affairs power.
• This meant the Queensland Act which prohibited the transfer of land title to the Winychanan people was in conflict with the Racial Discrimination Act and was therefore invalid under the inconsistency rule in section 109 of the Australian Constitution.
• The case meant the Commonwealth could exercise the external affairs power to enact laws in areas presumed to be the residual powers of the States.

Question 14

What was Mabo No 1?

Answer 14

• In May 1982, Eddie Mabo and four other members of the Meriam community commenced a legal action claiming native title to the Murray Islands—a group of three islands off the north-east tip of Cape York in Torres Strait.
• In 1985, the Queensland Government attempted to pre-empt the case by having the State Parliament pass the Queensland Coast Islands Declaratory Act 1985.
• The Act declared that, upon the islands being annexed, they were ‘vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever’.
• This Act prevented Eddie Mabo from pursuing his land claim in the High Court.
• In May 1985, Eddie Mabo instigated proceedings in the original jurisdiction of the High Court to have the Queensland Act declared invalid because it was in conflict with the Commonwealth’s Racial Discrimination Act 1975.
• The High Court held the Queensland Act and the Federal Act were both valid exercises of their respective Parliaments’ powers.
• However, the two Acts were inconsistent with each other and according to the inconsistency rule in section 109 of the Constitution, the Queensland Act was declared invalid.
• This decision enabled Mabo to continue to pursue his land claim in the High Court, which led to Mabo no. 2.

Question 15

What is the appellate jurisdiction of the High Court?

Answer 15

• Hears appeals from the lower courts and state courts
• Section 73 of the constitution

Question 16

Who can overrule rulings from the appellate jurisdiction of the High Court?

Answer 16

parliament

Question 17

What is an example of the conciliation and arbitration power in the appellate jurisdiction?

Answer 17

The Engineers case

Question 18

What was the Engineers Case?

Answer 18

• Held=Engineers were covered by the Federal award under the power of section 51 (xxxv) of the Constitution.
• Extended Commonwealths powers to make industrial laws using conciliation and arbitration powers

Question 19

What is an example of the corporations power in the appellate jurisdiction?

Answer 19

Creation of Work Choices Legislation

Question 20

What was the Creation of Work Choices Legislation

Answer 20

• Corporations Power was used to create a national industrial relations system (concerning employers and employees of companies).
• In 2006 the States challenged this in the High Court. The High Court ruled that the legislation was intra vires or within the Commonwealth’s powers.

Question 21

What is an example of the Communications Power (Section 51v)?

Answer 21

Brislan’s Case

Question 22

What happened in Brislan’s case?

Answer 22

Extended Commonwealth’s powers at the expense of the states.

• In the 1930s, Australians had to pay a license fee to own and listen to a radio. Brislan faced criminal charges because she didn’t have a wireless radio license. Instead of paying the fine, she challenged the Commonwealth’s ability to impose the tax in the High Court.
• Section 51(5) of the Constitution gives the Commonwealth the power to make law relating to “postal, telegraphic and other like services”. The issue at hand was whether a wireless radio was a “like service” – was it similar enough to the post and to telegraphs that it could fit within that section?
• The High Court decided that a wireless radio was a “like service” because, like the post and telegraphs, the radio was a form of communication.
• This interpretation of the Constitution by the High Court means that the Commonwealth automatically has law-making power over any new technology that serves as a form of communication – for example, televisions, the internet. The High Court greatly expended the Commonwealth’s power here at the states’ expense.

Question 23

What is an example of the external affairs power in the appellate jurisdiction?

Answer 23

Teoh’s Case and Mabo No 2

Question 24

What was held in Teoh’s Case?

Answer 24

• Held= held that ratification of a convention is a positive statement by the Australian government to the world and its people that it will act in accordance with the Convention.
• The case was important as it means that the government is expected to act in accordance with international treaties ratified by Australia even if they have not been implemented in legislation.

Question 25

What was held in Mabo No 2?

Answer 25

Held that Australia was not terra nullis and that in some situations Indigenous Australians do have Native Title rights.