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
- Power was given to the Cth in s 51 – State government could not pass the said statute
- 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
- Based on judicial interpretation of the Constitution
- 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.
page revision: 6, last edited: 03 Mar 2011 13:21