THE COURT STRIKES BACK
February 1998 |
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The
Attorney-General has his say
Perhaps it started in August of last year, when the
Federal Attorney-General, Daryl Williams spoke at a conference of the Australian Institute
of Judicial Administration.
No doubt Mr Williams would deny he fired the first shot, but let’s not quibble
about who did what to whom. Whatever, the Attorney made his position quite clear:
"The courts, in demanding that their role be respected, must also respect the role of
Parliament". It doesn’t take a genius to see that this is yet another of the
unintended consequences of the endlessly debated High Court Wik decision.
Who is the Attorney-General?
Known as the "first law officer of the Crown", Attorneys-General walk an
enigmatic tightrope between politics and the law. They are appointed at both a State and
Federal level, but first up they are elected by you and me.
They are usually lawyers, although a recent Victorian incumbent had once been an
architect and earned the moniker "the Architect-General". It is integral to the
tension between the Attorney-General and the courts that Attorneys are answerable to both
their political and judicial masters, in the same way that any politician or officer of
the court must be.
The judge speaks!
High Court Justice Michael Kirby, an eminent jurist by anyone’s standards, last
year told an American audience of lawyers that the High Court had experienced political
attack following the 1996 Wik native title decision: "Unless there is a measure of
mutual restraint," he said, "the judicial institution will be damaged and
judicial integrity undermined".
It was reported that Justice Kirby was particularly critical of comments attributed to
Deputy Prime Minister Tim Fisher that the High Court would benefit from a conservative
appointment. Justice Kirby is hardly on virgin territory here, in fact his comments echo
pleas made by Chief Justice Brennan for Attorneys-General to defend the role of the courts
from political attack – which, of course, makes for an interesting dilemma, precisely
because the Attorneys-General are politicians themselves.
So where does their first duty lie, as guardians to the courts or to the political
process? Justice Kirby has no doubt: "Leaders of the legal profession, whatever their
own general political persuasion, should speak up where judges are unfairly criticised by
politicians and others for doing their independent duty". And in his opinion, that
task lies squarely with the Federal Attorney-General.
The Attorney-General responds
According to the Federal Attorney-General, the judges have gone a little overboard.
"The judiciary is not under siege," Williams commented, "and it’s
certainly not defenceless…There is a legitimate debate as to the limits of judicial
law making." The Queensland Attorney-General was less sanguine: "The judges are
treading on political territory here," said Mr Beanland, "if they become
involved in issues before the Parliament in that way then they are going to become targets
for various politicians."
Who has the upper hand?
So who’s right in this debate, and who’s in charge, the legislature or the
courts? This is not straightforward.
In some ways the High Court has the final word, because it can assess legislation in
terms of its adherence to the Constitution. This creates a natural conflict between the
Court and Parliament – elected representatives of the people make Parliamentary laws.
On the other hand, the Constitution can only be changed by referendum.
The courts made most of the early law in this country - they decided each case on its
merits and according to what courts had previously said in similar situations. This is
called the common law, and all courts, except the High Court, must follow decisions of
higher courts.
Laws are also made by Parliament. These are called "Acts" or
"statutes", and they take precedence over common law where the two conflict. But
even when an Act or statute takes precedence, the courts still play a role in interpreting
the law, and as we said, the High Court can always check Acts to ensure they comply with
the Constitution.
Why? Because the Parliament doesn’t go about its business without supervision.
Just because we elect our politicians, it doesn’t mean they have a licence to make
any law they like. You see Parliament gets its power to make laws in the first place from
the Constitution – and the High Court is the watchdog of the Constitution. So if an
Act exceeds the limits placed on Parliament, the High Court can "sorry - you can't do
that".
For example, the Federal Parliament has power to pass laws about defence under section
51 of the Constitution – but that doesn’t mean they can pass a law that sends
the army to police university campuses and call it a "defence" power (at least
not without a challenge!). Sometimes it works the other way, and Parliament follows the
Court. This is what happened in the Mabo case, where Parliament introduced the Native
Title Act to counter the High Court decision (the Court decided that previous decisions
about native title were wrong, and that in fact that common law does recognise native
title).
Is the High Court untouchable?
There’s nothing to stop criticism of the courts, but we should understand the
so-called "separation of powers".
There are three arms of government in Australia:
the executive (the governor-general as the Queen’s representative);
the legislature (Parliament);
and judiciary (the courts).
The doctrine of the separation of these powers is crucial to our way of life, and it is
enshrined in our Constitution. Each arm operates independently from the other to ensure
there is no collusion or undue influence.
Does this mean that politicians should be prohibited from criticising the courts? No,
but politicians have a duty to ensure that the political process does not infringe on the
independence of the judiciary. So this is probably the relevant function of the
Attorney-General, to make sure the public is aware that the High Court has a function
guaranteed by the Constitution, and defend it against some of the more vicious attacks
that are motivated by political considerations.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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