The High Court and judicial power: WACE Year 12 Politics and Law

What this dot point is asking

This dot point asks you to assess how the High Court exercises power and why it matters in the political and legal system. The Court is established by section 71 of the Constitution and sits at the apex of the Australian court hierarchy. It has two main functions: original jurisdiction (cases heard first in the High Court, including constitutional matters under sections 75 and 76) and appellate jurisdiction (final appeals from federal courts and state supreme courts).

Judicial review and constitutional interpretation

The High Court's most significant political role is judicial review: the power to decide whether a law made by the Commonwealth or a state is within constitutional power and, if it is not, to declare it invalid. Although the Constitution does not expressly grant this power, the Court confirmed it early, drawing on the principle that the Constitution is supreme law and the judiciary must determine its meaning. When the Court rules a law unconstitutional, that law has no legal effect.

Because the constitutional text is short and was written in 1900, the meaning of its powers is largely determined by interpretation. The High Court can read powers broadly or narrowly, and the trend across the twentieth century was a broad reading that expanded Commonwealth authority.

Key cases to know

Several cases recur in WACE answers. The Tasmanian Dam Case (Commonwealth v Tasmania, 1983) confirmed the external affairs power lets the Commonwealth implement treaty obligations, allowing it to override state development. The Mabo Case (Mabo v Queensland (No 2), 1992) recognised native title at common law, rejecting the doctrine of terra nullius. The Wik Case (1996) held native title could coexist with pastoral leases. The Australian Capital Television Case (1992) and Lange v ABC (1997) established and clarified the implied freedom of political communication, an implied constitutional protection derived from the system of representative government.

These cases show the Court doing two things at once: resolving a legal dispute between parties and reshaping the distribution of power in the federation.

The separation of judicial power

Chapter III does more than create the courts; it strictly separates judicial power from the legislative and executive branches at the federal level. The Boilermakers' Case (R v Kirby; Ex parte Boilermakers' Society, 1956) held that Commonwealth judicial power can only be exercised by Chapter III courts, and those courts cannot exercise non-judicial functions. This protects judges from being assigned political tasks and protects citizens from having their rights determined by anyone but an independent court.

Judicial independence is reinforced by section 72, which gives federal judges security of tenure (they can only be removed by both houses of Parliament for proven misbehaviour or incapacity) and protected remuneration. Since the 1977 referendum, judges must retire at 70. This independence means the executive cannot pressure or dismiss judges who rule against the government.

Evaluating the Court's role

In favour of the Court's power: it upholds the rule of law, keeps governments within constitutional limits, protects the federal balance, and has filled some gaps in rights protection through implication. Concerns raised against it: unelected judges can effectively change constitutional meaning without a referendum, decisions can have major policy consequences, and the broad reading of powers has centralised authority in Canberra in ways the framers may not have intended. A balanced answer holds both sides together.