Judiciary

1. Judiciary

2. Judiciary function • judicial power • Judicial power is the power to interpret or apply the law and one of three powers under the Constitution, the others being legislative power (exercised by the Parliament) and executive power (exercised by the Executive). The judge defended the court’s judicial power when the minister criticised his interpretation of the law. • Judiciary (the) • The Judiciary is the branch of Australian governance concerned with the administration of justice. It is made up of the system of courts and judges. The Judiciary responded to laws proposing mandatory consequences for first time offenders. • The Judiciary is a term which applies to the collection of people who hold the office of judge. • From www.peo.gov.au Glossary: judge A judge is someone whose job is to hear and decide cases in a court of law. Australia’s judges work in a number of courts including the High Court of Australia, federal courts and the supreme courts.

3. Judiciary function • - • - • -

4. Lawmaking process in parliament and the courts • Statutory Interpretation is the determination of the meaning of an Act of parliament by a court before they can apply it to a specific case. Where a statute is ambiguous and relatively current, courts will apply its words literally. If interpretation is required a court will consult established authorities and legal principles in determining the meaning of the Act.

5. Examples of meaning of an Act being unclear • Drafting Problems: A bill drafted in a hurry may lack knowledge or contain unclear/conflicting instructions from the government. • Inconsistencies and Contradictions: Parts of an Act may conflict with each other or the Act may conflict with other Acts. • Words and Definitions: Act may be unclear due to undefined words or badly defined.

6. 3 rules of Statutory Interpretation • Literal/Plain meaning rule: Judge follows “black letter of the law.” They must assess the Act in isolation and apply it exactly in accordance with its words. This can lead to people being unfairly ‘caught’ by an Act. The plain meaning rule ignores the fact that words may not have a ‘plain meaning’. • Golden rule: Enables judges to determine the absurd applications of an Act. It allows judges to refer to the general aim of a statute in interpreting and apparently inconsistent part of an Act. • Mischief/Purpose rule: When Act is more consistently unclear, this rule allows judges to refer to the general purpose of the legislation to find the mischief the Act set out to prevent.

7. High Court • High Court of Australia • The High Court of Australia is the judicial power set up under the Australian Constitution to rule on disputes that arise from the Constitution, and to hear appeals from other federalcourts and the supreme courts of each state. Most sittings of the High Court of Australia take place in Canberra. • www.peo.gov.au Glossary

8. The Australian High Court is established under Section 71 of the Australian Constitution: • Australian Constitution – Section 71 – Judicial power and Courts • 71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

9. The Court is the final arbiter of interpretation of the Australian Constitution, as well as the final court of appeal from all other Australian State and Federal courts.

10. Appointment • Under section 72 of the Constitution, Justices of the High Court: • Are appointed by the Governor-General in Council; • Cannot be removed except by the Governor-General in Council on an address from both Houses of Parliament in the same session, praying for such removal on the grounds of proved misbehaviour or incapacity; • Receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office; and • Must retire on attaining the age of 70 years. • There have been 12 Chief Justices and 42 Justices since the Court was established in 1903, including the current members of the Court. • Three members of the Court – Sir Isaac Isaacs, Sir Ninian Stephen and Sir William Deane – resigned from the Court to become Governor-General. • The current Justices of the High Court and the dates they were sworn in, are as follows: • Chief Justice French AC, 1 September 2008 • Justice Hayne AC, 22 September 1997 • Justice Crennan AC, 8 November 2005 • Justice Kiefel AC, 3 September 2007 • Justice Bell AC, 3 February 2009 • Justice Gageler, 9 October 2012 • Justice Keane, 5th March 2012

11. Commonwealth Of Australia Constitution Act • 72. The Justices of the High Court and of the other courts created by the Parliament-- • (i.) Shall be appointed by the Governor-General in Council: • (ii.)Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity: • (iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. • The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. • The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. • Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. • The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. • A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General. • Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. • A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.

12. 73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences-- • (i.) Of any Justice or Justices exercising the original jurisdiction of the High Court: • (ii.) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council: • (iii.) Of the Inter-State Commission, but as to questions of law only: • and the judgment of the High Court in all such cases shall be final and conclusive. • But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. • Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

13. 74.No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the Question is one which ought to be determined by Her Majesty in Council. • The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. • Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

14. 75. In all matters-- • (i.) Arising under any treaty: • (ii.) Affecting consuls or other representatives of other countries: • (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: • (iv.)Between States, or between residents of different States, or between a State and a resident of another State: • (v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: • the High Court shall have originaljurisdiction. • Mandamus • Prohibition • injuction

15. 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter-- • (i.) Arising under this Constitution, or involving its interpretation: • (ii.) Arising under any laws made by the Parliament: • (iii.) Of Admiralty and maritime jurisdiction: • (iv.) Relating to the same subject-matter claimed under the laws of different States.

17. Role of HC • The High Court is the highest court in the Australian judicial system. • It was established in 1901 by Section 71 of the Constitution. • The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts. • From http://www.hcourt.gov.au/about/role-of-the-high-court

18. The HC in the Constitution • S75 • S75 • s76 • S71 • S73 • S74

19. History of HC • The first HC bench was distinguished, comprising three people who had been prominent in the Federal movement. They were: • The Chief Justice, Sir Samuel Griffith, former Premier and former Chief Justice of Queensland. • Sir Edmund Barton, the first Prime Minister of Australia and Leader of the Constitutional Conventions which led to Australia becoming a Federation in 1901. • Richard Edward O'Connor, a former Minister of Justice and Solicitor-General of New South Wales and the first Leader of the Government in the Senate. • Although the High Court of Australia was established in 1901 by Section 71 of the Constitution, the appointment of the first Bench had to await the passage of the Judiciary Act in 1903. • The first sitting of the High Court took place in the Banco Court of the Supreme Court building in Melbourne on 6 October 1903.

20. Phases of HC • Intentionalist • Literalist • Legalist • Activist • Current phase • Are phases accurate?

21. Definition • Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." • Judicial Activism: the view that from time to time it is reasonable for a judgement of a court to depart from precedent and existing legal principles to bring the law up to date with community values. Activist judges may find implied meanings in the Constitution. (Eg. Mabo 1992)

22. The topic of judicial activism relates to • Separation of Powers, • Statutory Interpretation, and • Constitutional interpretation.

23. Views on judicial activism • A third view is that so-called "objective" interpretation of the law does not exist. This refers to the role of judges. • Opponents say that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. • Supporters of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times.

24. the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." • Former Justice Kirby 2006 said

25. Other points in support of JA • the judiciary strikes down both elected and unelected official action, • in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. (ie things have changed) • judges are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them(ie Howard’s appointments of conservative judges suit conservative Howard voters) • a stronger judiciary  the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, • i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. • an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations ($ doesn’t buy constitutional decisions)

26. Overseas examples of JA cases USA (rights, voting) • Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools.[15] • Roe v. Wade – 1973 Supreme Court ruling decriminalizing abortion.[16] • Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was elected President.[17] • Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.[18][19] • Perry v. Schwarzenegger – 2010 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.[20] • PAKISTAN • Contempt of Court and disqualification of Pakistani Prime Minister Yusuf RazaGilani by the Supreme Court of Pakistan chief justice Iftikhar Muhammad Chaudhry[21]

27. Arguments for: • Creativity of judgements in superior courts is inevitable because new legal situations arise, legislation contains ambiguities, appropriate common law precedents may not exist • eg Australian Television Case (1992)  HC looked beyond the ‘black letter of the law’ and found an implied meaning in the Constitution. In Theophanous (1994) HC decision about right to free speech was based on Constitution’s creation of representative government – widened the definition of political free speech so politicians couldn’t threaten defamation suit to halt criticism. • Parliament sometimes fails to resolve legal questions or bring the law up to date, leaving it in the hands of the courts eg Mabo /native title issue wasn’t dealt with by parliaments until after the HC decision. Eg some issues parliament may find too controversial or unpopular with voters to legislate (such as gay marriage?) – cf USA Supreme Court is deciding on that in 2013 • Judges can legitimately consider ‘policy’ based on enduring community values when making decisions while still respecting legal principles • Concerns about court acting as a ‘de facto’ parliament are misplaced as parliament can legislate to overturn judicial decisions. • Parliamentary sovereignty ensures this. In fact the subsequent Native Title Act (Cth) 1993 adopted the HC decision within statute law.

28. High Court JA cases • Mabo • Theophanous • Australian Capital Television

30. Arguments against (for Legalism): • The separation of powers means that parliament makes law and that courts should merely apply the laws parliament has made to individual cases (declare law) and adjudicate the individual cases • The decisions of judges should be based on pre-existing legal norms • Judges should be guided by ‘judicial restraint’ and take no regard in their decisions to changes in society. • As parliaments are democratically elected, accountable through elections to the people and broadly reflective of majority views, it is Parliament's will that should prevail

31. Quotes FOR activism • Quoted by retired HC Justice Kirby, 2006, in a paper on Judicial Activism. Taken from: • A v Home Secretary [2005] 2 AC 68, 110 (Lord Bingham), quoting International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, 754 (Simon Brown LJ). • ‘Constitutional dangers exist no less in too little judicial activism as in too much.’

32. Charter of rights and activism From:The Australian October 22, 200912:00AM • MICHAEL Kirby has hit back at former High Court colleague Ian Callinan'scriticisms of a proposed charter of rights and activist judges, saying parliament sometimes needs "a little help from their friends" in the courts. • …sections of the media…were not properly reporting the issue because of "extreme and hysterical" journalism. • (Kirby, HC judge for 13 years until his retirement in 2009)…said judicial activism was sometimes required when injustices were done. • Parliament often failed people such as Aborigines, prisoners, gays, women and refugees, who were frequently the victims of ill-conceived or discriminatory laws, he said at Murdoch University in Perth yesterday. "Those who have scrambled up the slippery slope of politics may not want a diversity of voices speaking up for human rights. • …(politicians) should not pretend parliament fixes everything up.

33. The Mabo judgement • Precedents overturned by this decision included Murrell (1836 Supreme Court of NSW) which found that Aborigines did not have a legal or political system and so could not be considered as having rights to land. • However Murrell was lower in the court hierarchy so was not binding upon the High Court. • The judges recognised and applied the underlying values of contemporary society. • The Mabo judgement is an example of legal activism because it rejected terra nullius as being inconsistent with the underlying values of modern society. However, the Justices still based their decision on precedent and legal authorities. They referenced common law precedents in other regions of British settlement to show that terra nullius was inconsistent with comparable law outside Australia. They also referred to international legal norms (such as UN anti-discrimination treaties) that were now accepted.

34. Mabo as ‘activist’ • Significance of Mabo: • Showed how the HC can create a new common law precedent, in this case contributing to the common law concept of ‘fairness’ and ‘efficiency’ • Decision provided the basis of the ‘native title’ rights to land for indigenous Australians • Mason Court (1987-1995) • Mabo 1992 • Decision seen as amounting to a ‘judicial revolution’ • The law prior to Mabo: • Pre-existing view of Aboriginal property rights was from Supreme Court NSW Murrell (1836) – legal principle of ‘terra nullius’ (empty land). • Law didn’t recognise any pre-existing system of Aboriginal law or government in Australia before white settlement

35. Legislative response to Mabo • WA new statute (Premier Court) • but • Mabo decision is also linked to the developing of the external powers of Cth – such powers were cited to help overrule legislation introduced in WA shortly after Mabo • This perhaps added to ongoing federal/State conflict • Parliamentary sovereignty • Native Title Act (1993), PM Keating - established Native Title Tribunal, which allowed States to use own legal structures for some purposes if they were consistent with the prescriptive regime set out by the Cth

36. Wik (1996) – High Court HC held that native title could apply to pastoral leases • Some commentators welcomed Mabo as an opportunity to redefine and shape Australia's traditions, national identity and facilitate the reconciliation process • NB: not all decisions since 1980 are activist • What makes a decision activist? • Need a good definition • Other HC activist decisions: • Theophanous (1992) • Australian Television Case (1992)

37. Replies to critics of ‘activism’ • French CJ • November 2009 • Kirby

38. A dubious definition