Lecture 7 - Professor Mary Walsh PDF

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Week 7 Lecture The Judiciary    The judges play an important role in government in Australia.  True of High Court judges and judges that sit in every other jurisdiction.  Magistrates, who are public servants are also important.  Judges are important because they decide whether and how laws ...

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Week 7 Lecture The Judiciary     

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The judges play an important role in government in Australia. True of High Court judges and judges that sit in every other jurisdiction. Magistrates, who are public servants are also important. Judges are important because they decide whether and how laws and regulations should be applied. They also oversee uses of power by Parliaments and members of political executives to ensure that they accord with the formal and informal rules that control the use of governmental power. Judges don't just get their governmental power from their role in applying laws and regulations. They have their own power reflected in the history of case law, called common law, which they created. Judge made law and law made by Parliament are both important in shaping Australian society. The main questions that arise in this context concern the way that judges have avoided being seen as political and the consequences for the increased recognition of the political nature of judges for Australian politics.

The Rule of Law  Government in Australia is governed by the principle of the 'rule of law.'  The Australian judiciary, particularly the High Court, is responsible for enforcing this rule of law.  Understanding the rule of law is important for appreciating the High Court's role as the interpreter of the Constitution.  It also effects expectations Australians have of their political system, as the Australian judicial system effectively has two system, with the High Court at the peak of both.   

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Problems with the concept of the 'rule of person' (subjective, based on inclinations and whims). Rule of law, on the other hand, exists when principles and processes mean that decision makers cannot alter the rules. The Australian Constitution expresses the rule of law (as well as other things), as the decisions, laws and regulations made by federal and state political executives and public sector employees must be consistent with it. Once appeals from the High Court to the Privy Council ceased, the High Court had sole responsibility.

The Australian Court System  There are two court systems in Australia.  One system is hierarchy of courts that produce common law, where judges in higher courts make decisions that must be followed by judges in lower courts.  Many principles relate to interpreting laws generally and to applying particular laws (where particular courts deal with particular issues - Children's Court, Land & Environment Court etc.)  The hierarchy is made of a set of state-based judicial

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The second judicial system applies to laws made by the Commonwealth Parliament and regulations produced by the political executive.

Questions of Visibility  How are we using the term 'visibility'?  No one would suggest that judges should not be seen.  When we talk about visibility we mean that judges are not seen to be actors in the political system.  Visibility refers to 'political visibility'.  Why have High Court judges tended to be less visible than Parliamentarians and members of political executives?  And why have they recently become much more politically visible in recent years? Why have judge been less politically visible? 1. Adjudication not law-making o A distinction between interpreting the law and making the law. 2. Legal positivism/impartiality o Judges interpret the law according to its literal meaning. o Judges must not impose their views as to what should happen in making a decision. o Practice impartiality or indifference in the cases they preside over. 3. In the context of constitutional interpretation o Impartiality is particularly important for High Court judges. o This is because their most politically important decisions concern the meaning of the Constitution and are the result of power struggles between state and federal political executives. o High Court decisions are a part of struggles for power. o To be seen to be making decisions that are not impartial or 'objective' means that the High Court itself can get caught up in power struggles.   

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Members of the first High Court did not act impartially and were conscious of their role in power struggles. Justices Griffith, Barton and O'Connor had all helped to draft the Constitution. By applying the principle of implied prohibitions, they tried to ensure that the federal government remained significantly less powerful with more limited powers than state governments. And they applied the principle of immunity of instrumentalities to make sure that the two levels of government couldn't interfere with each others power. The judges who followed Griffith, Barton and O'Connor applied these principles until 1920 when the justices stopped applying these and instead adopted legal positivism. The Engineers' Case marked the introduction by the High Court of a strict literal approach to constitutional interpretation. The limit to the federal Parliament's power in this case, understood as implied prohibitions, is not in the Constitution, so the High Court did not have a general principle through which it could limit federal Parliament's power in this case and subsequent cases. This decision marked a stead increase in the powers of federal government.

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This was despite the fact that, from the way the Constitution was written, this was not the intention of most of those who wrote the Constitution and supported federation. The first judges of the High Court were actively political when it came to interpreting the Constitution. To create invisibility, judges have actively encourages the view that judicial decisions were simply the result of the applications of the meaning of laws, for which Parliament was responsible. The principles of legal positivism and judicial impartiality facilitate the perception.

Why have judges become more visible and conspicuous?  There are three reasons to suggest that High Court judges have become more politically visible 1. The High Court has handed down some controversial decisions that effect Australian politics yet they were appointed and not elected. 2. There is a greater willingness for state Supreme Courts and the High Court to comment on social issues. 3. Read Slides Controversial High Court Decisions  The main reasons the High Court has been seen as more politically active were the Mabo and Wik cases.  The High Court rejected the doctrine of terra nullius which allowed the British to ignore prior occupation.  These decisions which recognised the land rights of Indigenous Australians were a sources of confusion and tension for many Australians.  Land rights for Indigenous Australians, from this perspective, where economic and social threats to other Australians. Using position to articulate concerns about Australian society  While many members of the High Court are unwilling to do so, recent members of the High Court are more than willing to comment on important social issues. Change in Approach to Interpretation  Changes in the interpretation of the Constitution by the High Court. Judicial Activism & The High Court 1. The High Court has always been politically active. o Interpreting the Constitution makes the High Court central to politics and if this is true it makes the second point important. 2. The accusation of legal realism may reflect more about the accuser's view on the sort of principles the High Court should base its decisions upon than it does on the activity of the Court. o It is hard to avoid the reality that those who accuse the High Court simply do not agree with its decisions. The High Court has always been active 1. Uniform Tax Case 2. Tasmanian Dam Case

3. Activism may indicate attitudes to decision making. Is increased visibility on the part of the High Court desirable? 

Yes o o o

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Judges are central to social order. Judges have discretion Democracy requires that judges are visible.

No o o o o

Those in government must maintain legitimacy Too much attention to a political context with result in a loss of legitimacy. Judges lose legitimacy if they are caught up in political struggles. Judges are only lawyers.

Is the High Court's activist role in law making a challenge to Australian democracy? 

Yes o

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Because parliamentarians are truly representative of the people as they are elected not appointed.

No Because the judiciary provides an important check and balance on Parliaments power and is an important aspect of accountability in a democracy. o Because judges are more in tune with community sentiment than politicians. o Because Courts should be respond to the perceived failings of Parliament. o

The Malaysia Solution  What is the Malaysia solution?  An arrangement freely entered into by the Gillard government and the Malaysian government - to swap 4000 processed refugees from Malaysia into Australia over a four year period at 1000 people per year in exchange for up to 800 offshore arrivals.  Point - to break people smugglers model by sending those coming by boat seeking asylum back to Malaysia by plane.  Government taking this course of action based upon expert advise that this is the strongest deterrent.  The coalition strongly supports offshore processing. So what happened?  The Full Bench of the High Court decided in 2011 that the Government's Malaysia swap deal interfered with the rights of asylum seekers - specifically their right to liberty, freedom of movement and freedom from assault.  The decision by the court was 6-1. Why is this important?  This is important because we have talked about the Constitution and the separation of powers.  The separation of powers between the executive and the legislature.  The separation of powers between the executive and the judiciary.  Judges being appointed and not elected.  The tension that arises from these key points.

Since the High Court Decision 31 Aug. 2011  The Gillard government has sought to get around the High Court decision based on the pre-eminence of parliament as the law making body.  The Green have refused to be a part of the Government's plans to make changes in the Migration act in Parliament in the two week sitting 12-15 September and 19-22 September 2011.  Many members of the left faction of the ALP also disagreed with offshore processing....