Australian Law and the Australian High Court - Essay Example

?Australian Law Discuss why the decision of the High Court that a recently enacted Statute is unconstitutional would be seen by the Government more as a serious set-back to its legislative reform programme than a decision by a Judge of the Supreme Court interpreting the meaning of a key provision in the Statute in a manner contrary to the Government’s intentions, as demonstrated by the speech of the Minister concerned, when he/she introduced the proposed legislation in Parliament. Introduction: The Australian High Court is the Supreme Court in the hierarchy of Courts in Australia and also the last Court of Appeal. It has both appellate and original jurisdiction, the authority of judicial evaluation over laws and regulations passed by the Parliament of Australia and the Parliaments of the States, and it interprets the Constitution of Australia. The High Court of Australia is capable to manage cases which come to it on appeal or which start in the High Court itself. Cases which entail interpretation of the Constitution or where the Court may be called upon to depart from one of its earlier decisions or where the Court thinks the principle of law involved to be one of main public importance, are generally determined by a complete Bench including all seven Judges if they are available to sit. “Decisions of the High Court are binding on all other courts throughout Australia” (High Court of Australia 2010: 1). The High Court of Australia is the uppermost Court in the judicial system of Australia, the Court of "last resort", in the judicial system of final appeal. It has its origins in the Australian Constitution, Section 71 of which affirms: “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as Parliament creates, and in such other courts as it invests with federal jurisdiction” (The High Court of Australia n.d: 1). The High Court shall comprise a Chief Justice and also a lot of other Judges, not below two, as the Parliament has laid down. The fundamental functions of the High Court are to construe and support the Constitution, to construe Federal law and to attend to cases referred from other Courts. Therefore, it is the purpose of this essay to discuss why a decision of the High Court on the constitutionality of a Statute will be seen by the Government as a further serious setback to its legislative reform plan than a judgment by a Judge of a State Supreme Court in understanding the meaning of an important provision in the statute, in a way contrary to the Government’s goal. The Australian Constitution states that the power to create laws is vested in the Parliament. At the same time, the power to understand laws and to judge whether they are relevant in individual cases is vested in the High Court and other Central Courts. Actually, one of the important functions of the High Court is to interpret the Constitution. For instance, the Australian High Court can rule a law to be illegal which is beyond the authority of Parliament to enact and so of no effect. Such a condition would be seen by the Government as an obstruction. The Australian Constitution founds the Federal Government by providing for the Parliament, the Judiciary and the Executive, that is identified as the three pillars of governance or as the policy of “separation of powers” (Clark 2009: 972). Parliamentary Government means that the Executive Government comes from in the Parliament. Accountable Government means that the Executive Government is accountable to the Parliament. The rule of “separation of powers” is to prevent an oppressive government. The “three branches of government” constituted by the Legislature, Judiciary and Executive, work as checks and balances on each other (About Parliament. n.d:1). The Judiciary is “independent” of the other two arms of Government (1). That independence is one of the main critical safeguards of the democratic system of the country. The Executive is the managerial part of Government, and is comprised of government workers working in a quantity of agencies and departments. The Executive is allowed by the Australian laws to put those laws into operation and support those laws once they have started to operate. A Minister is a part of the Government who has been selected to also work as part of the Executive, frequently with responsibility for issues on a particular subject. The Prime Minister also works as the head of the Australia's Government. Ministers are not specifically mentioned anywhere in the Constitution, other than their responsibilities, and are accepted as being significant conventions that exist to ensure an efficient Executive. The function of the Parliament is to enact laws. The Parliament consists of the Queen, represented by the Governor General and the two Houses, the “House of Representatives and the Senate.” (Manning & Petersen, 2013:5). The Parliament passes legislation. Proposed laws must be agreed to by those both Houses to become law. The Courts are bound by law and by decisions made in earlier cases. As the Courts work in a hierarchical manner, a lower Court is bound by any decision of a higher Court. With reference to the appellate arrangement of the legal system of Australia, when the Judges make an error, the hierarchy of Court allows an appeal to an upper Court to have a mistake of law corrected.  The Australian High Court is empowered to hear cases which come to it on appeal or which start in the High Court itself. Cases which involve understanding and interpretation of the Australian Constitution or where the Court may be called upon to depart from one of its earlier decisions or where the Court thinks the principle of law involved to be one of main public importance, are usually determined by a complete Bench of all seven Judges. Other cases which reach the High Court for final determination engage appeals in opposition to the judgments of the Supreme Courts of the Territories and States, of the Federal Court of Australia and these are heard by a Court of not less than two Judges. Additionally, there are certain subjects which can be heard and resolved by a single Judge. The majority of the Court's work entails hearing of appeals in opposition to judgments of other Courts. “There is no automatic right to have an appeal heard by the High Court. Parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons to cause the appeal to be heard” (The High Court of Australia 2010:1). Decisions made by the High Court are final. There are no additional appeals once a matter has been determined by the High Court. Judgments of the High Court are binding on every other Court throughout Australia. References About Parliament 05: Three Branches of Government. Retrieved September 5, 2013, from Australia Legal Information Centre. n.d. Legal Resources, Australia. Retrieved September 5, 2013, from Clark, T. S. 2009. The Politics of Judicial Independence: Court-curbing and the Separation of Powers. Princeton University, Vol.53 (4): pp.971-989. Retrieved September 5, 2013, from High Court of Australia. 2010. Operation of the High Court, Commonwealth of Australia. Retrieved September 5, 2013, from Manning, J. E. & Petersen, R. E. 2013. House of Representatives and the Senate. Congressional Research Service. Retrieved September 5, 2013, from The High Court of Australia. 2010. Australia Legal Information Centre. Retrieved September 5, 2013, from Read More