The Impact of the High Court

An idiots guide

Role of High CourtThe role of the High Court is to act as the final appellate court in the Australian judicial system.

It’s Word is final. This means that any new precedent made by the high court applies to all courts underneath it in the judicial hierarchy .

It must deliberate on the constitutionalism of laws made by parliament

Make interpretations of statutes in Australia

Adjudicate between commonwealth and states, and between the people of a state and the state or commonwealth.

Although it is not an intended role, the High Court is also the key agent for constitutional change.

Legalism vs. Activism

Two Different methods of judicial interpretation

Legalism: Also known as literalism. Sticking to the black letter of the law.

Words and plain meaning only, with legal aspects of case examined without regard to social consequences.

Legalists believe separation of powers should be observed. Parliament makes the law and the courts merely apply it.

Criticisms: Some believe absolute legalism is a fairy tale as judges cannot avoid making law, even if it is just reaffirming established precedent.

Judges are human and cannot separate themselves from society. Their decisions must be influenced by community concerns.

An example would be the recent I.R laws case against the states and the commonwealth.

Activism: Also known as progressivism.

The purpose and intention of the act is judged, as well as the wider community concerns involved. Implications found within the acts.

Activists believe that courts can fill in gaps left by parliaments and decide on aspects of the law not considered at the time the law was created.

They also believe that its still separation of powers because parliament still has sovereignty and can override. Criticisms: A highly activist court

oversteps its mandate.

Unelected judges should not try to represent the community.

Judges are not accountable to anyone.

Phase 11903-1920

Intentionalist phase – believed in states legislative authority, kept to word and spirit of constitution.

Believed constitution had conceded a few specific rights to commonwealth.

Used US supreme court decisions as precedents

“Implied prohibitions” – HC set narrow limits on Commonwealth powers

“Immunity of instrumentalities” – operations of states and state authorities not covered by commonwealth laws.

Federalist rather than centralist. Influenced still by intentions of founding fathers (Who were still alive at that point)

Edmund Barton, Samuel Griffith

Phase 21920 - 1942

Change marked by “Engineers Case” which was influenced by a British common law tradition that set no judicial limits on parliamentary sovereignty.

Declared Commonwealth had broad power to act under their designated powers.

Decided commonwealth industrial relations legislation could “cover the field,” restricting role of states.

Centralist rather than federalist.

Isaac Isaacs, Adrian Knox

Phase 31942 - 1970

Legalism. “Black letter of the law.”

Favoured neither commonwealth or states.

Gave broad meaning to the constitutional section on freedom of trade and commerce between states.

Prevented Labor party’s “Nationalisation of Banks,” which put an end to the Communist leanings of the left wing.

Owen Dixon, Garfield Barwick

Phase 41970 - 1996

Broader interpretation of commonwealth powers. Extended existing principles and broke new ground.

Several major decisions, such as Tasmanian Dams, Koowarta, Capital Television, etc.

Created theory of implied rights of individuals which were in the constitution, just not overtly, such as the right to free speech and political commentary.

Some activist decisions creating new common law. i.e. Mabo.

Harry Gibbs, Anthony Mason

Contemporary ApproachSince 1996

Considerable personnel change.

Conservative tendencies. Legalist rather than activist

Redefined implied right as specific limits on government powers.

Rejected notion that constitution held rights that could invalidate other legislation.

Composition

High Court established in 1903 with 3 Justices. Moved up to 5 in 1906, and then 6 in 1921. Stayed at 6 throughout the inter-war years due to economic restraints (Great Depression), finally upped to the 7 we know and love in 1946.

Gerard Brennan, Murray Gleeson

Significant Decision #1Mabo case of 1992

Overturned the established legal principle of “Terra Nullius,” or “Empty land.”

Recognised the Aboriginal people as owners of the land. “Native Title” established.

Gave Aboriginal people rights to make claim on land deemed as crown land.

Landmark decision because it marked a change in society’s way of thinking towards the Aboriginal people.

An example of Legal Activism.

Significant Decision #2Australian Capital Television case of 1992

Arose from Commonwealth attempting to regulate political advertising during the federal election campaign.

High Court Justices found this to be unconstitutional because we have a representational parliamentary government, implying a constitutional guarantee of freedom of speech as a necessary condition of any free and informed vote.

One of the first instances of implied rights and an example of Judicial Activism

Significant Decision #3Tasmanian Dams Case (1983)

Tasmania attempting to build a dam

which would destroy Aboriginal heritage sites

Opposed by environmentalists and the PM Malcolm Fraser.

First time that environmental policy played a role in an election.

South West Tasmania deemed heritage listed by Bob Hawke’s government

High Court upheld the decision over the Tasmanian challenge, agreeing that the case would come under section 51 in the constitution allowing the Commonwealth to pass laws on matters of international concern arising from a bona fide treaty.

Dietrich (1992)This high court decision stated that criminals had an implied right to legal representation under section 80 of the constitution concerning fair trials.

Previously, the high court had turned down appeals citing lack of legal representation.

Dietrich was done for trafficking heroin, He applied for legal aide but was denied.

He took the decision to the high court stating that the general principle established was that a defendant charged with a serious offence, who could not afford legal representation, must be supplied with legal aide.

Luckily for him the High Court agreed.

Less luckily, even having a lawyer didn’t keep him out of prison.

Past TEE QuestionsDistinguish between a legalist and an activist method of interpretation within the legal system.

Identify two significant impacts of landmark High Court decisions upon Australian law.

Evaluate the extent to which the High Courts’ decisions on “implied rights” have replaced the need for a constitutional “Bill of Rights.”

Evaluate the extent to which the High Court could be considered the main agent for constitutional change.

The End

Making this was even less fun the second time round…