Does the High Court have too much power?
Explain the structure, jurisdiction and appointment of the High Court, and evaluate whether it has too much power.
How the High Court is structured under Chapter III, its original and appellate jurisdiction, how its justices are appointed, and whether its power over the Constitution is too great.
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What this dot point is asking
You must explain how the High Court is structured, its jurisdiction and appointment, and evaluate whether its power is too great. This focuses on the Court as an institution rather than on its methods of interpretation.
Structure and appointment
The High Court is established by section 71 of the Constitution as the highest federal court.
- It consists of a Chief Justice and six other justices, making seven in total.
- Justices are appointed by the Governor-General acting on the advice of the government of the day.
- They have security of tenure until a fixed retirement age of seventy, which protects their independence by ensuring they cannot be removed for unpopular decisions.
Jurisdiction of the High Court
The High Court has two kinds of jurisdiction.
- Original jurisdiction is the power to hear certain matters for the first time, set out in sections 75 and 76. This includes disputes about the interpretation of the Constitution, matters where the Commonwealth is a party, and disputes between states.
- Appellate jurisdiction is the power to hear appeals from all other Australian courts, including state supreme courts, under section 73. Most appeals require special leave, meaning the Court chooses which cases raise important enough issues to hear.
The power of the High Court
The High Court's most significant power is constitutional review: it can declare a law passed by the Commonwealth or a state invalid if the law breaches the Constitution. Because it is the final interpreter of the Constitution, its decisions shape the division of powers between the Commonwealth and the states and the limits on government power.
Does it have too much power?
This is the evaluative big question for the option area.
Arguments that it has too much power include that unelected judges can invalidate laws made by an elected parliament, that it has expanded Commonwealth power through broad interpretation, and that it cannot be appealed or easily checked. Arguments that its power is appropriate include that someone must be the final interpreter of the Constitution, that the Court can only act when a case is brought and only on constitutional grounds, that parliament can respond by referendum, and that judicial independence and constitutional review are essential to the rule of law.
Connection to the rest of the course
This dot point connects to the separation of powers, the division of powers, constitutional interpretation and rights protection. It is central to the option area on the Australian Constitution and a strong basis for an inquiry into whether the High Court has too much power.
Exam-style practice questions
Practice questions written in the style of SACE Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2018 SACE Stage 21 marksIdentify two types of dispute that might be resolved by the High Court of Australia.Show worked answer →
Any two of the following are correct:
Disputes about the interpretation or validity of the Constitution, including the division of powers between the Commonwealth and the states (its original jurisdiction).
Appeals from the Federal Court, the Family Court and the supreme courts of the states and territories on questions of law (its appellate jurisdiction, by special leave).
Other acceptable answers: matters in which the Commonwealth is a party, disputes between states, or matters affecting consuls or arising under treaties (all part of the section 75 original jurisdiction).
2018 SACE Stage 220 marks'The High Court of Australia is too powerful.' Using examples, evaluate this statement.Show worked answer →
A 20-mark "evaluate" needs a clear contention, balanced argument with real examples, and a sustained judgement.
- Arguments that it is too powerful
- As the final interpreter of the Constitution, the High Court can strike down legislation and effectively reshape the federal balance. Through broad interpretation of powers such as external affairs (Tasmanian Dam case) and corporations (Work Choices case), it has expanded Commonwealth power at the expense of the states. By recognising implied rights (implied freedom of political communication in ACTV) and overturning settled doctrine (terra nullius in Mabo), unelected judges have made decisions with major social and political effect, with no appeal from their rulings.
- Arguments that it is not too powerful
- The Court only decides cases brought to it and is bound to apply the law and the Constitution, not its own preferences. Its power is checked: Parliament and the people can amend the Constitution by referendum, the executive appoints justices, and the doctrine of precedent and published reasons constrain it. Judicial review is essential to the rule of law and the separation of powers, ensuring government acts within legal limits.
- Judgement
- A strong response concludes that, while the Court's interpretive power is great and largely unchecked between referendums, this power is a necessary and legitimate part of upholding the Constitution rather than evidence of overreach - though particular decisions can fairly be debated.