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The Impact of Landmark Decisions made by the High Court. The Role Of The High Court. Definition: Superior court in hierarchy Directly established Original jurisdiction Appellant jurisdiction Interpret & apply Constitution establishes, outlines & powers of judicature

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The Impact of

Landmark Decisions

made by the High Court

The Role Of The

High Court


  • Superior court in hierarchy

  • Directly established

  • Original jurisdiction

  • Appellant jurisdiction

  • Interpret & apply

  • Constitution establishes, outlines & powers of judicature

  • Starting at section 71…

    -judicial power of commonwealth vested in supreme court, to be called HC of Aus., the HC consist of a CJ, many other justices, not less than 2, as parliament prescribes.

Original Jursidiction


  • Matters originally heard

  • Actual original jurisdiction, in regard to ‘All Matters’(s75):


    -Consuls or other representatives

    -Person suing/being sued, is a party

    -Between states, residents or both

    -Writ of mandamus, prohibition, injunction, sought against an officer

Original Jurisdiction

  • Conferral creates some problems:

    -Immigration related decisions, against an officer

  • Potential original jurisdiction, parliament may confer in relation to (s76):

    -Arising the constitution, or interpretation

    -Arising under any laws made

    -Admiralty & maritime

    -Relating subject-matter, laws of different states

Appellate Jurisdiction

  • Defined under section 73

  • High court hear appeals from supreme,

  • Any federal court or court exercising,

  • Decisions made by 1 or more justices

  • S73 allows appellant to be limited, such exceptions & subject, regulations

  • Parliament a large limitation, s35A of Judiciary Act 1903

  • Requires “special leave”

  • Special leave, only granted, a question of law, public importance

  • Or involves conflict, in interest admin of justice

  • While the HC is final court, cannot be general

Significant Phases

of the Courts

Jurisdictional History


  • Many do not see phases, trends

  • Scholars attempted, characterise eras

  • 1903 HC major impacts, on federal division of powers

  • Decisions divided into historical phases:

    -Phase 1:1903-1920

    -Phase 2:1920-1942

    -Phase 3:1942-1970

    -Phase 4:1970-1996

    -Phase 5:Contemporary approaches

Phase 1:


  • Meant major theme, understand “intent”/desire of founders sentiments.

  • States rights upheld, assistance US supreme.

  • 3 original justices, HC applied presumptions, not found in text, derived by implication, federal scheme, interpretation.

  • Doctrine of implied immunities, doctrine reserve state powers, implied prohibitions

  • 1903-1920, court interpreted constitution, favour of states, residual powers.

  • Primarily, first 3 justices, part in framing.

  • Landmark cases

    -D’Emden’s Case (1904)

    -Peterwald’s Case (1904)

Phase 2:


  • Meant judicial emphasis, upon actual literal meaning, of words, looking back, what the founders may/may not founded.

  • Engineers’ case-

    -Dispute between, Amalgamated society & engineering & sawmilling, by WA.

    -Commonwealth sought legislate, under s51 had power make laws, state based, dispute extended beyond.

    -HC agreed, broader interpretation, industrial powers, ruling industrial law apply WA, & by implication other states.

Phase 3:

Neutral Period

  • Literalist interpretation saw cases, both ways, no major extension.

  • 1945-late 1960s, court returned to policy, protecting states rights, maintaining federalism, mixed results.

  • Period essentially neutral for HC.

  • Landmark Cases-

    -Noarlunga Meat Case (1954)

    -State Banking Case (1947)

    -Communist Party Case (1951)

Phase 4:

Activist Court

  • Meant the emphasis judicial interpretation, placed upon application of Const., contemporary society.

  • Since 1970 HC given broader interpretation, commonwealth powers.

  • Landmark Cases-

    -Bass Strait Pipeline Case (1983)

    -Crayfish Case (1988)

Phase 5:


  • Considerable change of personnel in 1990s.

  • Decisions more legalist than activist.

  • HC more cautious approach, extent of individual rights protected.

  • ‘Implied rights’ redefined, specific limits on gov. powers.

  • Rejected any notion, const contained extensive rights, could render other statutes.

  • Landmark Case-

    -Hindmarsh (1998)

1983 Tasmanian

Franklin Dam

  • Tasmania attempted to build the Franklin Dam which would flood the south west and Gordon rivers

  • The labor party promised to stop the dam and as a result got voted in

  • The High court then rejected the challenge to stop the construction

  • The Justices found the commonwealths claim that this region is covered by world heritage a valid use of external powers which gave federal government power to stop the construction

1988 Tasmanian Crayfish

  • Crayfish brought in from Victoria were undersized in Tasmania's laws

  • Court created legal precedent by overturning any state or commonwealth act.

  • This precedent increased power to regulate business and engage in commercial activity.

1992 Australian Capital Television

  • Australian capital television limited challenged the commonwealths political broadcasts and disclosures act.

  • Seen as unconstitutional as we are representative government

  • This was significant as it was the first time the court had identified political freedoms or rights

1992 The Mabo Judgement

  • In 1992, the Mabo case occurred which formed the basis of the precedent of the native title rights for indigenous people.

  • Australia’s first legal principle for this was terra nullius, which meant that the land was vacant, allowing for the creation of new laws

  • Court found terra nullius inconsistent with current values of society and other British settlements

1994 Theophanous

  • Dr Andrew Theophanous, a member of parliament sued the Herald and the Weekly Times for alleged defamation

  • The High court, basing its decision on the responsible government which is stated on the constitution found that this claim was invalid.

  • The reason being is that freedom of speech about the government is an implied right