Chapter 8

Question 1

Why does the judiciary have no democratic mandate

Answer 1

The judiciary is the only arm not elected, and because of this it has no democratic mandate

Question 2

If the judiciary has no democratic mandate, where does it derive it’s authority from?

Answer 2

Numerous sources of power: constitution (chapter 3), Judiciary act 1903, common law, long established norms of how judicial decisions are made, Accountability through appeals, tradition and heritage, authority of courts is always subject to that of parliament or judicial power < legislative power

Question 3

What reasons for the people having more trust in the judiciary than the other two arms of government

Answer 3

• dispassionate character
• traditional heritage
• politically neutral

Question 4

What is the significance of s71 of the Constitution

Answer 4

3 functions:

1. creates high court
2. Allows for the creation of federal court hiearchy (Family law act 1975 created federal family court) (Fed. Magistrates act 1999 created Fed. Mag. court)
3. Permits cross-vesting of judicial power

Question 5

What is cross-vesting?

Answer 5

Cross-vesting is where parliament invests other courts with federal jurisdiction, so state court can rule in area’s of federal law, mostly for convenience (EG. Jurisdiction of Courts act 1987 gives courts some federal power)

Question 6

Outline 2 ways in which s72 guarantees judicial independence.

Answer 6

1. Executive appoints, but only parliament removes, judges on the grounds of proven misconduct or integrity
2. The executive cannot reduce judges pay’

Question 7

Explain what is meant by the terms ‘appellate’ and ‘original’ jurisdiction

Answer 7

Appellate jurisdiction refers to the power of a court to review the decision of lower courts, and to overturn or endorse them
Original jurisdiction referes to the power of a court to hear cases in the ‘court of first instance’

Question 8

Outline the appellate jurisdiction of the High Court uner s73

Answer 8

s73 grants the HC the power to hear appeals on all civil and criminal matters arising from lower courts throughout states.

Question 9

Is there an automatic right of appeal to the HC? explain

Answer 9

No, because 35A of Judiciary Act 1903 sets the circumstances under which Special Leave to Appeal is given, which are misscarriage of justice, question of law, conflict between courts

Question 10

What are the 2 main roles of the HC

Answer 10

Determining constitutional cases, Hearing appeals, some of which may lead to new common law

Question 11

What’s the difference between ‘justiciable’ and ‘non-justiciable’

Answer 11

J-can be heard in court Eg. constitutional interpretations

NJ- cannot be heard in court Eg. Westminster Conventions

Question 12

What are examples of how disputes can arise over the meaning of words in the constitution

Answer 12

Eg. Workchoices 2006, controversy over the interpretations of ‘corporations power’ under s51XX, court found in favour of the legislation

Question 13

Explain why the parliament must operate within the limits of its’ ‘heads of power’

Answer 13

Must operate within the powers constitution gives it, as can be challenged in the HC if they are ultra vises, which embarasses gov. and stops legislation from passing

Question 14

Outline the significance of the Williams no 2 case

Answer 14

Williams no 2 (2014), Ronald Williams challenged the governments power to amend the Financial Management and Accountability Act 1997, the HC held that laws were invalid and beyond the power in s51 xxx3A because chaplains did not give ‘benefits to students’
Significant because it effectively placed a limit on Com. power by stating they must act within heads of power

Question 15

Outline significance of William no 1 case

Answer 15

Executive power is not limited in the same way as ‘heads of power,’ yet it can be limited by statutes and HC. Govt. used s61 to fund chaplains in QLD (executive perogative). The HC ruled that this power could be authorized by parliament, and therefore, the fact that it wasn’t legislated by parliament, means that the executive couldn’t and therefore couldn’t exercise their perogative under s61.

Question 16

Define: Doctrine of Reserved Powers

Answer 16

When HC interprets concurrent powers it does so in a narrow sense that preserved the power of the states and limited the power of the commonwealth to legislate in areas of shared powers

Question 17

Define: Doctrine of Implied Immunities of Instrumentalites

Answer 17

The DIII was a common law doctrine which preserved state powers. It prevented the Commonwealth from interfering with State residual powers

Question 18

Explain a case which defended State power

Answer 18

Railway Servants Case 1906
Over the right of the Commonwealth to legislate working conditions
WA v Com, s51(xxxv)

Question 19

Why are state powers non-justiciable

Answer 19

State powers are unspecified and unwritten, which means HC cannot interpet them

Question 20

Explain the significance of the Engineers Case 1920

Answer 20

Dispute between Sawmill union and WA govt, union was federal so the Commonwealth legislated in the area using s51(xxxv), HC agreed, wiping away Doctrine of Implied Immunities of Instrumentalities

Question 21

Explain the signigicane of the 1942 Uniform Tax Case

Answer 21

s51(ii), Uniform Tax 1942 consisted of 4 statutes which were challenged by the states. The HC found that these were constitutional because the defense powers were much more important in war. Income tax took away a large portion of state income, which made them rely on grants much more

Question 22

How did the HC’s broader interpretation of s109 increase Commonwealth power

Answer 22

s109 states that Commonwealth law > state law, and it wins within the inconsistency. Broadly interpreting this meant that the entire state statute is invalidated. This doctrine overturn Doctrine of Reserved Powers

Question 23

Has the HC sought to limit the discretion of the Commonwealth government under s96? What has been the effect of this approach?

Answer 23

No, the section says ‘as it thinks fit’, which is very broad. The result are significantly diminished residual and concurrent state powers

Question 24

What are two examples of cases that have limited Commonwealth power

Answer 24

State Banking case (1947)

Bank nationalisation case (1948)

Question 25

Why has the external affairs power become more signifcant

Answer 25

s51(xxix), allows commonwealth to sign international treaties, and ratify them by passing statutes, essentially giving authority to make agreements law, and override state laws that are in conflict with them

Question 26

Explain 2 cases relating the to the external affairs power

Answer 26

Koowarta case 1982, Koowarta wanted to buy land, the gov. refused, which conflicted with the Racial Discriminatory Act 1975 which was passed using the external affairs power after UN convention
Tasmanian Dam 1983, Tasmania wanted to dam a river, the commonwealth said no

Question 27

Explain a case which relates to financial powers

Answer 27

Ha case 1997, state had levied fees on some businesses, which were deemed ‘excise’ and under s90 thats exclusively commonwealth, which diminished state financial independence

Question 28

Why is s51 (xx) so significant

Answer 28

Corporations power, gives the commonwealth the power to legislate around any incorporated body

Question 29

Explain a case relating to s51 (xx)

Answer 29

Work Choices 2006, Commonwealth legislated around states industrial relations powers. States lost

Question 30

What are 2 problems that having an executive within majority party causes

Answer 30

1. controls legislative agenda

2. Potential politicisation of executive decision-making

Question 31

Explain how the HC can discover meanings within the Constitution and give 2 examples

Answer 31

Constitution may not explicitly state laws, as such HC must interpret spirit of the constitution. Eg. right to vote is implied in s24 and s7. Eg. federal nature and spirit of constitution is recognised by the HC, which suggests the states should remain an important part of Australian Government.

Question 32

Explain the Norrie case and how it created common law

Answer 32

Norrie is a 3rd gender, who wished to register as ‘non-specific’ sex, which the QLD gov. refused, after appealing to the HC, it was found the legislation only allows for 2 sexes, however the registrar was simply responsible for recording the information given to them by the public, not to decide on the moral and social judgements about surgery.

Question 33

What is judicial discretion

Answer 33

Freedom of a judge to use their experience or understanding to interpret law

Question 34

Distinguish between the two main categories of judicial interpretation

Answer 34

1. legalism, the use of statutes and interpretation rules to interpret law
2. Activism, the broader social impact and the intention of a law is heavily considered.