It’s a neat term, "constitutional surgery". We first heard it in February of this year, when Queensland Premier Borbidge suggested voters be given the opportunity to elect (and sack) High Court judges (which would require "surgery" on the Constitution by referendum). He complained that there were no checks and balances on the decisions of Australia’s highest court, his comments clearly prompted by the Wik decision. Support came from the Western Australian Attorney-General, and Victorian Premier Jeff Kennett bought into the argument when he suggested that the High Court judges had effectively become legislators. Deputy Prime Minister Tim Fisher described the recent High Court decisions as "judicial activism". So the question comes down to the independence of the High Court. Where does the High Court fit? In response to the issues raised by State Premiers, the Attorney-General, Daryl Williams QC, said "the independence of the judiciary is crucial to the stability of our system of government". Why is this important, and how does the judiciary obtain its independence? Australia’s Constitution, which is based on the traditions of the British Parliament, establishes a separate Executive, Legislature and Judiciary. The Executive power rests with the governor-general, who represents the British monarch. In truth this power is exercised on the advice of the Cabinet. The Legislature is a branch of government that we know as the Federal Parliament, directly elected by the people, and it passes written laws called "Acts" (or "statutes"). The Judiciary are the courts that decide legal disputes, independent of the Executive and Legislature. The High Court is a special category of the Judiciary, because it has what is known as "original jurisdiction" over certain questions of the interpretation of the Constitution. This means it can hear a constitutional question that has not been heard before any other court (this is different to its role as the highest court of appeal from State Supreme Courts and Federal Courts). Lawyers sometimes talk of the High Court as the guardian of the Constitution. Who chooses High Court judges? The federal Attorney-General consults the States, but the final decision is with the Federal Government. University of Melbourne head of constitutional law, Cheryl Saunders, argued that Borbidge and his mates were overstating the lawmaking role of the High Court. So who is right? Is the High Court doing more than interpreting laws? Does it have a role akin to the Legislature? Judges make decisions, not laws. When laws are written they are not always clear, and it's impossible for Parliament to anticipate every situation that might be covered by the legislation. So it is the judges job to interpret the laws. Some laws are not written by Parliament - they come from what is called "common law", i.e. unwritten laws that are developed over time by the courts. These laws can be changed by legislation, which takes precedence over common law. But remember, judges cannot overrule legislation unless the High Court considers a law invalid in light of the constitution. So how do the two types of laws interact? Let’s say the federal Parliament passes a law that allows a Commission to take over all the banking services in Australia. Obviously this would greatly upset private banks, so they might challenge the law in the High Court on the basis that it is unconstitutional, i.e. (to paraphrase the words of the former Chief Justice Dixon) it goes beyond the powers that the Constitution provides to the Parliament. In this way the High Court could decide that all or any part of our fictitious banking law is unconstitutional and therefore is invalid. The High Court recently looked at the validity of other laws in the States Taxes case. Let’s look at it from another point of view. In the Mabo case the High Court decided that common law recognises the existence of "native title" to land. This decision raised some other issues (e.g. the status of pastoral leases, compensation and the way to decide questions of native title) that needed to be addressed, so the Parliament passed a law called the Native Title Act. So does this mean the High Court can "make laws"? You decide – but from a strictly legal point of view, though this debate demonstrates the importance of the High Court in our daily lives, it does not mean it is a de facto Parliament. 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. |