Topic 6: Roles and Powers of the High Court of Australia (HCA) Flashcards
(23 cards)
What is Section 71? - Roles of the HCA
This section formally establishes the High Court and vests it with the judicial power of the Commonwealth.
It is part of the Constitution’s enforcement of the separation of powers, ensuring that the judiciary operates independently of the legislature and executive.
What is Section 72? - Roles of the HC
This section sets out the process for the appointment, tenure, and removal of High Court justices. Justices are:
- Appointed by the Governor-General on the advice of the Executive Council.
- Required to retire at age 70.
- Can only be removed by both Houses of Parliament on proven grounds of misbehaviour or incapacity.
This is critical in maintaining judicial independence, shielding judges from political influence and ensuring fair legal decisions.
What is Section 73? - Roles of the HCA
The High Court has the power to hear appeals from lower courts (appellate jurisdiction). It is the final court of appeal in Australia. The Court must grant special leave to appeal, which is only given when a case involves:
- A significant question of law
- Inconsistencies between court decisions
- Miscarriage of justice.
This role ensures uniformity in the application of law across Australia and allows the HCA to develop precedent.
What is Section 75 - Roles of the HCA
This section gives the High Court original jurisdiction to hear cases directly, without them first going through lower courts. The Court can hear:
- Matters involving treaties or foreign representatives
- Cases where the Commonwealth is a party
- Disputes between states or between residents of different states
What is Section 76? - Roles of the HCA
Parliament is permitted to give the HCA additional original jurisdiction, especially in cases involving the interpretation of the Constitution or matters arising under federal law. This expands the Court’s ability to resolve important issues involving constitutional validity or interpretation.
What is judicial review?
Judicial review is the process by which courts assess the legality or constitutionality of laws and executive actions. It allows the HCA to strike down legislation that breaches the Constitution.
Example: Williams v Commonwealth (2012 & 2014) – the HCA invalidated government funding for chaplaincy programs.
What is jurisdiction?
Jurisdiction refers to the legal authority of a court to hear and decide cases. The HCA has:
1) Original jurisdiction - The authority of a court to hear a case for the first time. (S75 and 76)
2) Appellate jurisdiction - The authority of a court to review and revise the decision of a lower court. (S73)
What is injunction?
An injunction is a court order that requires a party to do or stop doing something. It is often used to prevent unlawful action or enforce rights.
What is a appeal?
An appeal is when a party requests a higher court (like the HCA) to review the decision of a lower court. The HCA is the final court of appeal in Australia.
What is a special leave to appeal?
Special leave to appeal is required to appeal to the HCA. The Court only grants it when a case involves:
- A question of law of public importance.
- Inconsistencies between decisions of different courts.
- Significant miscarriage of justice.
What are examples of HCA decisions creating new common law>
- Norrie v NSW Registrar (2014)
- Mabo v Queensland (1992)
What is Norrie v NSW Registrar (2014)?
In this case, the High Court allowed a person to be registered as having “sex not specified”, recognising non-binary gender identities. It interpreted the NSW Births, Deaths and Marriages Registration Act to include gender diversity, setting a new legal precedent for gender rights in Australia.
What is an example of the HCA striking down unconstitutional laws?
Williams v Commonwealth (2012 & 2014)
What is the Williams v Commonwealth (2012 & 2014)?
In both cases, the High Court ruled that federal funding of chaplaincy programs was unconstitutional as it was originally funded without legislation (violating s61 limits) and lacked a valid constitutional basis (no proper s51 head of power). In 2012, the Court struck down the program as exceeding executive power under S61. In 2014, legislation trying to validate the funding was also struck down because it relied on the wrong head of power (s51(xxiiiA)), which only permits funding for services directly to individuals. This case is a strong example of the High Court using judicial review to enforce the limits of Commonwealth power.
What are examples of the HCA checking executive actions?
Plaintiff M70/2011 v Minister for Immigration
What is the Plaintiff M70/2011 v Minister for Immigration Case?
The High Court invalidated the Malaysia Solution, which aimed to send asylum seekers to Malaysia. The Court ruled that Malaysia lacked adequate legal protections and obligations under the Migration Act, and thus the executive action was unlawful. This demonstrates the Court’s role in checking executive actions and ensuring they comply with legislation.
How is judicial independence upheld in Australia?
- Section 72: Judges have tenure and fixed remuneration.
- Courts operate separately from the legislature and executive (separation of powers).
- Cannot be removed without joint parliamentary action.
How is judicial independence undermined in Australia?
- Political attacks on judges.
- Media influence on high-profile cases.
- Government appointing ideologically sympathetic judges.
What is the Citizenship 7 Case (2017)?
The High Court ruled that seven members of Parliament were ineligible to sit due to holding dual citizenship, under s44(i) of the Constitution. Even though some MPs were unaware of their status, the Court applied a literal interpretation. This had major political consequences and reinforced the Court’s role in interpreting the Constitution strictly.
What is a case involving judicial review of executive action?
NZYQ v Minister for Immigration (2023)
What happened in the case NZYQ v Minister for Immigration (2023)?
The High Court ruled that indefinite immigration detention of a stateless man was unconstitutional where there was no real prospect of removal. It found that such detention became punitive in nature and could only be ordered by a court, not the executive. This breached the separation of powers under Chapter III. The Court overturned Al-Kateb v Godwin (2004), reinforcing that only courts can impose punishment, and that indefinite detention without judicial oversight is unlawful.
