LAWS1115 Lecture 6

Judicial Review

  • Judicial review of administrative action – review made not by the legislature but by certain bodies (eg. tribunals, administrative body, city council)
    • Very in keeping of parliamentary sovereignty
    • ultra vires (beyond the powers)
    • procedurally flawed (in regard to principles of fundamental justice)
      • eg. Not hearing a trial before you’re related to someone
  • Judicial review of primary legislation
    • eg. Go to court and ask them to review the enactment of the democratically enacted legislature
    • Because it’s incompatible with some kind of right
      • Cannot do this in Australia
    • Because it’s unconstitutional
      • Power was given to the Cth in s 51 – State government could not pass the said statute
        • This legislature cannot pass this statute because another legislature should.
      • Can’t strike down legislation based on federalism
      • Judiciary has to pick who has the power in dispute
  • Structural judicial review
    • Still attacking primary legislation – parliament has no right to pass this statute
    • Making a complaint based on the structure of the Constitution
    • Main grounds for this are:
      • Separation of powers (judicial and non-judicial powers)
  • In the Constitution, Chapter 1 is about the legislature, Chapter 2 is about the executive and Chapter 3 is about the Judiciary
    • Inferred that there is a separation of powers in Australia
    • This hasn’t been done in other Federal counties like USA and Canada
    • In Westminster system, there is no separation between the executive and the legislature
    • There is a separation of the judiciary from the other branches
  • No particular separation between the legislature and the executive
    • Based on judicial interpretation of the Constitution
      • Have inferred some limits on what Commonwealth legislature can do
      • Separation of judicial and non-judicial powers
  • Rationales for having judicial power
    • Independent judiciary is crucial in order to keep the federal division alive (laughable in the Australian context) (Integrity of federalism)
    • Libertarian checks and balances style promotion of liberty
      • More likely to enhance the likelihood of individual liberty
  • Not a lot of empirical evidence for either of these reasons
  • Four elements that define judicial power
    • There must be a controversy/dispute;
    • This controversy has to affect rights/liberty/property (a pre-existing right);
    • It must have a capacity to give a binding and conclusive decision; and
    • It must arise outside of a consensual framework.
  • What are the rules that the High Court has laid down about whether you can separate judicial powers from non-judicial powers?
    • Must not be vested in a non-Chapter III body (only about Commonwealth legislature)
    • A judicial power of the Commonwealth can only be vested in a court in the strictest sense of the term.
    • The High Court and the Federal Court must be constituted in accordance with s 72.
    • Can delegate power but cannot advocate power
    • Federal courts cannot exercise state judicial powers except in cases where there is a crude/joint distinction
    • State parliaments must not vest State courts with any power incompatible/inconsistent with federal judicial power.
      • Cable case.
      • Can pass any statute as long as it isn’t aimed specifically at one person (if it’s towards a group of people, that’s fiiine.)
    • Non-judicial power cannot be vested in Chapter III courts
    • You cannot vest a judicial power in a Chapter III court but you can vest the type of power to a Chapter III judge in their personal ability
  • s 7 vs. s 122 (s 7 is Federalist, s 122 favours parliamentary sovereignty)
    • ‘The Senate shall be composed of senator for each state.’
    • ‘The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.’
    • Does the Commonwealth government have the power to give some representation to a territory? It’s. Not. Clear. (But evidently they decided that they could. Just sayin’.)
      • WA v Commonwealth (aka First Territory Senator’s case)
      • State’s argument: If Parliament has the power to do this, they could decide to give one territory a large number of seats in order to keep control of the government.
      • Queensland v Commonwealth 1997 (Second Territory Senator’s case)
        • One judge retired and the new judge agreed with Parliament. Two judges originally in the minority for the first case flipped to preserve continuity in decision-making.