Contents
- Judicial review [WHY WAS THIS EXCLUDED?]
- Judicial power of the Commonwealth
- Courts exercising the judicial power of the Commonwealth
- Separation of judicial power
- Privy Council
- High Court
- The High Court’s role in interpreting the Constitution
Judicial review [WHY WAS THIS EXCLUDED?]
One of the basic principles underlying the Constitution is the notion of judicial review. Under this principle, the responsibility for interpreting the Constitution, and determining whether parliaments and governments have exceeded their powers, rests with the courts and ultimately with the High Court. This responsibility is not expressly conferred on the courts by the Constitution. Nevertheless, it was a common assumption of the convention delegates (when drafting the Constitution) and the Australian people (when approving it) that the ultimate arbiter of what the Constitution meant would be the High Court, which was to be established in accordance with Chapter III of the Constitution. In this respect, the Australian Constitution follows the United States model under which the Supreme Court, and not Congress, has the function of interpreting the Constitution.
Communist Party case
The application of the principle of judicial review is illustrated by the Communist Party case (1951). The Commonwealth Parliament had passed legislation which purported to dissolve the Communist Party. The Act recited that the Parliament had taken this action because the Communist Party posed a significant and continuing threat to the internal security of Australia. It was clear that the Commonwealth Parliament had the constitutional power to take action against people or groups that posed a significant threat to the internal security of Australia. What was not clear was whether the Commonwealth Parliament could simply declare that a political party did pose such a threat and ban it on that basis.
The validity of the Act was challenged before the High Court. A majority of the Court declared the Act to be invalid. The majority justices noted that the validity of the Act depended upon a finding that the Communist Party posed a threat to the security of Australia. As validity turned upon this question, it was for the High Court, and not Parliament, to be satisfied that the Communist Party did, in fact, pose such a threat. As the Commonwealth had not satisfied the Court that the Communist Party posed a significant threat, the Court decided that the Commonwealth Parliament did not have power to enact the Act. Specifically, it was not enough for Parliament to recite in an Act that it thought the Communist Party was a menace and a danger.
It follows that the Commonwealth Parliament cannot 'recite itself into power'. To use another example, the Commonwealth Parliament has power over lighthouses under section 51(vii). But the Parliament cannot regulate restaurants under section 51(vii) simply by stating in an Act that a restaurant is to be treated as a lighthouse. Under the principle of judicial review it is for the courts to determine what is (or is not) a lighthouse. The inability of a parliament to control through legislation the interpretation and application of the Constitution was demonstrated again in Queensland Rail (2015), where the High Court held that, given its legal capacities and powers, Queensland’s rail agency was a 'trading corporation' for the purposes of section 51(xx) and could be regulated under that power, despite a Queensland Act stating that the agency was 'not a body corporate'.
Non-justiciable provisions
There are a small number of provisions in the Constitution which the High Court has decided concern actions which are not generally reviewable by the courts. These are provisions such as section 53 and section 54, which deal with 'proposed laws' and regulate the procedure of the 2 houses of the Commonwealth Parliament when dealing with certain Bills (see [6.84]–[6.85]). The High Court’s attitude reflects a traditional reluctance on the part of the judiciary to interfere with and adjudicate upon the internal workings of Parliament.
Judicial power of the Commonwealth
Before looking at who can exercise the judicial power of the Commonwealth, it is necessary to consider what judicial power involves. On several occasions, the High Court has said that it is not possible to provide an entirely satisfactory and comprehensive definition of judicial power. A commonly used definition which captures the central element of the concept is the conclusive resolution of a dispute about presently existing rights and obligations. A more easily understood, although rather circular, definition is that judicial power is the power traditionally exercised by courts, such as the conduct of criminal trials and the determination of civil disputes over such things as property and contracts.
The judicial power of the Commonwealth is concerned with the conclusive resolution of disputes in relation to the matters listed in section 75 and section 76 of the Constitution. The most important of these matters are:
- disputes involving the Commonwealth government (section 75(iii)) – for example, a member of the Australian Defence Force might sue the Commonwealth government for injuries he or she has sustained while on duty
- disputes between States or between residents of different States or between a State and a resident of another State (section 75(iv)) – for example, a resident of Queensland holidaying in South Australia might have a car accident with a resident of South Australia
- disputes about Commonwealth executive government decisions (section 75(v)) – for example, whether an officer in the Department of Home Affairs correctly decided that a person could be deported for breaching visa conditions
- disputes involving the interpretation of the Constitution (section 76(i)) – for example, a State may consider that the Commonwealth Parliament did not have constitutional power to enact a particular Act, and
- disputes arising under Commonwealth laws (section 76(ii)) – for example, a dispute between a taxpayer and the Commissioner of Taxation over the amount of tax payable under the Income Tax Assessment Act 1936.
The Commonwealth does not have any general legislative power over criminal matters. Criminal offences are principally a matter of State responsibility, and most of the legislation dealing with criminal matters is State legislation. It follows that most criminal trials in Australia are undertaken by State courts exercising State judicial power. However, Commonwealth Acts often prohibit certain forms of conduct and a court exercises the judicial power of the Commonwealth in determining whether a person has breached a Commonwealth law – for example, by deliberately failing to disclose income for the purposes of the Income Tax Assessment Act.
Courts exercising the judicial power of the Commonwealth
Under section 71 of the Constitution the judicial power of the Commonwealth is vested in:
- the High Court
- other federal courts that the Commonwealth Parliament creates, and
- courts of the States and Territories that the Commonwealth Parliament invests with federal jurisdiction.
We will look at the High Court in detail shortly at [8.45]–[8.54]. Before we do, however, it is useful to note briefly the other types of courts.
Commonwealth-created courts
There are currently 3 federal courts created by the Commonwealth Parliament: the Federal Court of Australia, created in 1975, and Division 1 and Division 2 of the Federal Circuit and Family Court of Australia (discussed below at [8.13]–[8.21].
Division 1 was created as the Family Court in 1975. Division 2 commenced operation in 2000, initially as the Federal Magistrates Court, with the name of the Court subsequently changed to the Federal Circuit Court. The Family Court and the Federal Circuit Court were brought together by legislation under a unified administrative structure from 1 September 2021, and are now commonly known collectively as the Federal Circuit and Family Court.
There are also a number of tribunals, most significantly the Administrative Appeals Tribunal. However, these are not courts and they do not, and cannot, exercise the judicial power of the Commonwealth. They exercise the executive power of the Commonwealth in that they provide independent review of the merits of decisions made by the executive government (see [7.42]–[7.43]).
Federal Court
The Federal Court deals with a wide range of matters, primarily those which arise under various important Commonwealth Acts such as the Fair Work Act 2009, Competition and Consumer Act 2010, Income Tax Assessment Act 1936, Bankruptcy Act 1966, Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977. From 1988 to 1999 the Federal Court also exercised jurisdiction in certain State matters under Commonwealth and State legislation. However, in Wakim (1999) a majority of the High Court held that it was unconstitutional for a federal court to exercise State judicial power. The Court considered that there was a clear implication from the text and structure of Chapter III of the Constitution that State legislation could not confer such power on a federal court. However, if a matter is within federal jurisdiction, the Court can hear State law aspects of it.
Appointments to the Federal Court are made by the Commonwealth government, usually from amongst leading barristers. Generally, appeals from a single judge of the Federal Court are to the Full Court of the Federal Court and then to the High Court, with 'special leave' (that is, permission) of the High Court (see [8.18]).
Family Court
The Family Court was established to resolve disputes in relation to divorce, including the custody of children and the distribution of property. Again, appointments to the Court were made by the Commonwealth government, generally from among leading lawyers practising in the family law area. Appeals from a single judge of the Family Court were to the Full Court of the Family Court and then to the High Court, with the leave of the High Court.
Federal Circuit Court
The Federal Circuit Court was established to determine disputes involving less complex federal matters, with jurisdiction (that is, authority to decide) in relation to a number of Commonwealth Acts, most significantly the Family Law Act 1975, the Fair Work Act 2009, the Bankruptcy Act 1966, the Migration Act 1958 and the child support legislation (Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988). The Court was established to ease the workload of the other federal courts and provide people with quicker and more affordable access to the federal judicial system.
Administrative merging of the Family Court and the Federal Circuit Court
The Parliament enacted legislation in 2021 that continued both the Family Court and the Federal Circuit Court in existence as respectively Division 1 and Division 2 of the Federal Circuit and Family Court of Australia. The main purpose of the legislation was to apply a unified administrative structure to both courts with common management support and a consistent approach to case management. The legislation also provided for common leadership, with one person able and expected to be both Chief Justice of Division 1 and Chief Judge of Division 2. As noted, given these changes the 2 courts are now commonly referred to collectively as the Federal Circuit and Family Court.
Appeals from the federal courts
As discussed in [8.44], section 74 of the Constitution, which provided for appeals from Australian courts to the Privy Council on various matters, is no longer of any practical application and may now be ignored. Section 73 of the Constitution confers a broad right of appeal to the High Court from other federal courts and other courts exercising federal jurisdiction. It confers a similar right of appeal with respect to State supreme courts and some other State courts even when exercising State jurisdiction. Section 73 is, however, subject to such 'exceptions' and 'regulations' as the Parliament may prescribe. The Parliament has prescribed various exceptions and regulations, primarily designed to prevent the High Court from being swamped with appeals. The most important 'regulation' is that an appeal to the High Court can in most circumstances proceed only with 'special leave' – that is, permission – of the Court. Apart from its concern to keep its workload manageable, the High Court rarely grants special leave to appeal from a decision of a single judge of either a federal or State court because it likes the benefit of an appellate court’s view of the matter.
Section 73 aside, the right to appeal from a decision of a federal court is regulated by Commonwealth legislation. The right to appeal from a State court from a decision that involved the exercise of federal jurisdiction is also conferred by Commonwealth legislation, but the legislation generally does this by picking up and applying the provisions of the relevant State’s law that provides for appeals from decisions of a court of that State when exercising State jurisdiction. One consequence is that appeals from lower State courts are generally to other higher State courts irrespective of whether the decision being appealed involved the exercise of federal or state jurisdiction. The State appellate systems are discussed in more detail below (see [8.28]–[8.30]).
The diagram sets out the broad position, but there are various exceptions and qualifications to this position which are too detailed to describe or represent.
The appeal provisions for decisions of what is known as the Federal Circuit and Family Court are particularly complicated. No direct appeal to the High Court is permitted from decisions of Division 2 of that Court. Rather, appeals from Division 2 on family law matters are heard by judges of Division 1, with appeals against decisions of Division 2 on general law matters (for example migration disputes) being heard by the Federal Court. Appeals from single judges of Division 1, formerly the Family Court, are heard by appeal judges of that Division with any subsequent appeal being heard, with special leave, by the High Court.
State courts
An odd feature of Australia’s constitutional system is that federal jurisdiction may be and is exercised by State courts. (As just noted at [8.13], the converse is not true – a federal court cannot exercise State jurisdiction.) The word 'jurisdiction' in this context means the authority to decide. The term federal jurisdiction in this context means the authority conferred by Commonwealth legislation to decide those matters listed in section 75 and section 76 of the Constitution. Section 77(iii) of the Constitution expressly allows the Commonwealth Parliament to confer federal jurisdiction on the courts of a State, and the Parliament has used this provision to give jurisdiction to State courts in a wide range of federal matters. For example, most criminal prosecutions for breaches of Commonwealth Acts (such as importing goods contrary to the Customs Act 1901) are heard by State courts.
Of course, State courts also exercise State judicial power, and this covers most criminal offences and civil matters. In each of the States, there is a State judicial structure under which the names of various types of courts differ, but in outline the structures are substantially the same.
At the top level there is a supreme court, which has a general jurisdiction in all types of cases, civil and criminal. However, in practice it deals with only the more important types of cases, depending on the seriousness of the possible punishment in criminal matters and the amount in dispute or effect on a person’s status in civil matters.
Then there are intermediate or district courts, which deal with a range of criminal and civil cases. This intermediate type of court has been introduced more recently. In the criminal jurisdiction, it is often characteristic of the supreme courts and the intermediate courts that a judge sits with a jury.
Most accessible and numerous are magistrates’ courts. They decide both criminal and civil cases in which maximum penalties or amounts involved are relatively small. They also make preliminary inquiries into the more serious types of criminal offences to decide whether the person charged should be committed for trial in a higher court. In the magistrates’ courts, no juries are employed.
Judges and magistrates
The judges of supreme courts and intermediate courts are appointed from the practising legal profession. In the magistrates’ courts, it was common during the 19th century for justices of the peace (JPs) to sit. JPs were unpaid and usually without professional legal training, although with experience they often became skilled at the job. The Australian magistrates’ courts (originally often called courts of petty sessions) came to differ from their English ancestors in one important respect: they were gradually given a fairly extensive civil jurisdiction, whereas the English ones were mainly criminal courts. It was largely for this reason that professionally trained magistrates came to be necessary in Australia, and the use of the JP as a magistrate declined. Today, State and Territory magistrates are required to be legally qualified to be appointed. Usually they are also required to have had at least five years’ experience as a lawyer.
Appeals
The State appellate systems are complex and the diagram above gives only a broad indication of those systems. The possibilities of appeal depend partly on whether the case has been heard in State jurisdiction or in federal jurisdiction, partly on whether it is criminal or civil, and partly on whether the appeal is confined to questions of law or seeks a complete rehearing.
Where a decision involves the exercise of State judicial power, it can usually be appealed either to an intermediate court or directly to the supreme court. If it is in an intermediate court, it can be appealed to the supreme court. Decisions of a single judge in the supreme court can usually be appealed to a full court of the supreme court, generally consisting of 3 judges. The majority of State supreme courts have a separate appellate division. Special leave can then be sought to appeal to the High Court (see [8.18]).
A case originally heard in federal jurisdiction can be appealed in the same way as a State case. It is theoretically possible for many cases heard by a single judge of a State court to be appealed directly to the High Court with the permission of the Court, but as noted that permission is not usually given (see [8.18]).
Separation of judicial power
The independence and impartiality of the judiciary are basic principles of any democracy. This requires at least strong conventions and preferably constitutional guarantees to protect judges from pressure or influence from the other branches of government, while ensuring that judicial standards of conduct are maintained.
Federal courts
The most important thing to note about the judicial power of the Commonwealth is that, under Chapter III of the Constitution, only a court may exercise it. No executive body, such as the police, can conclusively determine that a person has breached a Commonwealth Act and, as a result, impose a penalty. Also, the Commonwealth Parliament cannot prescribe that a person has breached a Commonwealth Act. Only a court can conclusively determine these matters.
The High Court has also held that a federal court can only perform judicial functions or functions incidental to judicial functions – that is, a federal court (or a State court exercising federal jurisdiction) cannot be empowered by the Commonwealth Parliament to perform executive or legislative functions.
This separation of the judiciary from the other 2 arms of government is another feature borrowed from the United States constitutional model. Section 71 of the Constitution vests the judicial power of the Commonwealth exclusively in the courts. Section 72 further safeguards the independence of the federal judiciary by providing that a federal judge may only be removed from office before the prescribed retiring age if both houses of the Commonwealth Parliament resolve that he or she has misbehaved or is physically or mentally incapable.
State courts
Unlike the Commonwealth, the States are not subject to a rigid separation of judicial power from other forms of governmental power. Hence, the States can and do use types of tribunals which combine judicial, administrative and quasi-legislative functions for particular purposes. These include town planning and environmental protection tribunals, equal opportunity commissions (concerned mainly with prevention of discrimination on protected grounds, such as sex and race) and tribunals concerned with professional and trade standards. The States also have their own systems to deal with intra-State employment conditions and disputes. In all States and Territories, many of the tribunals, and their particular functions, have been amalgamated into a 'super' Civil and Administrative Tribunal.
Position of State tribunals
A State tribunal which is not a 'court' cannot exercise judicial power in relation to the matters listed in section 75 and section 76 of the Constitution. A Commonwealth law cannot give a State tribunal the authority to determine conclusively legal disputes over those matters because section 71 of the Constitution allows the Australian Parliament to confer that authority only on a court.
Why a State tribunal which is not a 'court' cannot be given such authority under a State law is more complicated. The reason is based on an implication from Chapter III of the Constitution that a State body may decide a dispute or matter of a type listed in sections 75 and 76 only if:
- that body is a court, and
- the Australian Parliament has not determined under section 77(ii) of the Constitution that the authority to determine such disputes or matters should be conferred exclusively on a federal court.
Underpinning this implication is that each of the matters in section 75 and section 76 involves the adjudication of inherently federal matters. They often involve interests that extend beyond those of the State whose court is hearing the particular matter. On this view, those matters must be heard by a State court rather than any other State body, and the Australian Parliament must have the right to determine that those matters are only to be heard by a federal court.
For example, in Burns v Corbett (2018), the High Court considered the validity of New South Wales anti-discrimination legislation which purported to empower the State’s Civil and Administrative Tribunal, which was not a court, to determine conclusively a complaint by a resident of New South Wales that residents in Victoria and Queensland had made statements which vilified homosexuals. The Court declared the New South Wales legislation invalid because State legislation could not confer on a tribunal the power to determine conclusively a dispute over a matter referred to in section 75(iv) of the Constitution – a dispute 'between residents of different States'.
Protection of the integrity of State courts
Further, although a State court can perform administrative and legislative functions, the High Court, starting with Kable (1996), has developed the principle that a State parliament cannot confer a State function on a State court or State judge if the performance of that function would undermine the 'institutional integrity or independence' of that court. This is a complicated principle, and the reason the High Court implied it from the terms and the structure of the Constitution is also complicated. As we have seen, State courts can be, and are, entrusted by the Commonwealth Parliament with federal jurisdiction. Because State courts have this responsibility under Chapter III of the Constitution, the High Court considers that a State function which impairs the ability of State courts to discharge this responsibility is inconsistent with Chapter III of the Constitution and on that basis invalid. And a State law will impair the ability of a State court to exercise federal jurisdiction if that law compromises what the High Court considers to be the institutional integrity or independence of that court.
State laws that might compromise the institutional integrity of a State court are laws which require State courts or their judges to act in a way which is inconsistent with the basic standards expected of courts when acting judicially. For example, courts and judges when acting judicially are expected to hear both sides of a dispute and to give reasons for their decision when resolving it. In Wainohu (2011) the High Court held that the function imposed by a New South Wales Act on a judge of the State Supreme Court to declare that an organisation said to be criminal was a 'declared organisation' was unconstitutional because the judge was not required to give reasons for the declaration.
State laws which compromise the institutional independence of a State court are laws which, in substance, conscript State courts or their judges to give effect to policies or decisions of the executive government without allowing the court sufficient scope to exercise judicial discretion and determine the matter for itself. Totani (2010) concerned such a law. There the State court, in making an order which imposed a range of restraints on a person’s liberty (a 'control order'), was required under the State legislation to act largely on the basis of findings of fact made by the executive government and was not allowed to determine for itself that the restraints were necessary given the past or likely future conduct of the person.
Privy Council
For much of the 20th century, it was possible for a person to appeal from an Australian court to the Privy Council in the United Kingdom. Section 74 of the Constitution allowed Australians to appeal to the Privy Council from decisions of the High Court. This right was subject to any limits which the Commonwealth Parliament might impose on the right to appeal to the Privy Council. An appeal could also be brought to the Privy Council in relation to a dispute between the Commonwealth and the States on their relative powers under the Constitution, but such an appeal required a certificate from the High Court. The High Court determined early on that it would not grant these certificates. Therefore, this provision of section 74 has remained a dead letter and may be disregarded.
Section 74 represented a compromise between the British authorities and the Australian delegates who negotiated the passage of the Constitution by the British Parliament in 1900 (see [2.72]). There was at the time a strong Australian belief that Privy Council appeals should be abolished altogether. But the British authorities, supported by some Australians who were keen to protect British commercial interests, insisted that some provision be made for Privy Council appeals. Section 74 of the Constitution did not affect the right of parties to appeal directly to the Privy Council from decisions of a State court exercising State jurisdiction.
Appeals to the Privy Council from the High Court and from courts exercising federal jurisdiction were abolished by the Commonwealth Parliament in a number of steps by legislation enacted under section 74 of the Constitution in 1968 and 1975. By 1986, an appeal to the Privy Council could only be brought from a State court exercising State jurisdiction. This final avenue of appeal was shut off by the Australia Act 1986 (see [3.36]–[3.37]). As a result, the High Court is the ultimate court of appeal for all legal disputes in Australia, constitutional and non-constitutional, civil and criminal, federal and State.
High Court
It should be clear from what has already been said that the High Court is a critically important body in Australia’s constitutional system. It is the ultimate court of appeal in relation to all Australian legal matters. Most importantly, it is the ultimate arbiter of the Constitution. In this role it is able to identify implications in the Constitution which limit the powers of the Commonwealth and State parliaments and governments and, in effect, safeguard the rights and freedoms of the Australian people. It has the final say on whether parliaments have the power to take important policy initiatives – for example, the passing of the Commonwealth Racial Discrimination Act 1975 (see [5.26]–[5.27]) and migration and national security measures (see [9.48]– [9.49]).
Appointment of justices
The High Court comprises 7 justices, who are appointed by the Governor- General in Council on the recommendation of the Commonwealth government. A Commonwealth Act provides that, before making a recommendation, the Commonwealth government must consult with State governments, but no other process is required. The fact that the Commonwealth government effectively decides who should be appointed to the Court might be thought to compromise, to some extent, the independence of the judiciary and allow the Commonwealth to appoint persons sympathetic to the Commonwealth’s viewpoint. Once appointed, however, the government has no power to remove a justice, and history has shown that it is often difficult to predict what views a justice will have until after he or she has been appointed to the Court.
Under section 72 of the Constitution, each justice is appointed until he or she reaches 70 years of age. Justices initially held their appointments for life, but section 72 was amended by referendum in 1977 to impose the 70-year age limit. Most justices appointed to the Court have previously been barristers. Many have also previously been judges of other lower courts such as a State supreme court or the Federal Court. The first woman appointed to the High Court was Mary Gaudron in 1987. The first woman appointed as Chief Justice of the High Court was Susan Kiefel, who was appointed as a justice of the Court in 2007 and as Chief Justice in 2017.
View the list of Chief Justices of the High Court of Australia.
Constitutional cases
Although constitutional cases only account for 10 to 15% of the Court’s caseload, it is these cases which are the most significant. All seven justices ordinarily sit on a case which involves interpretation of the Constitution. Constitutional cases are nearly always heard in the High Court building in Canberra.
Argument
Cases are argued orally before the Court by barristers representing the competing parties to a dispute. The Commonwealth Solicitor-General usually argues the case for the Commonwealth government. Each State, the Northern Territory and the Australian Capital Territory has its own Solicitor-General to represent it. A party can represent himself or herself before the High Court, but the complexity of the issues that a High Court case raises means that the parties are almost without exception represented by barristers.
The oral argument before the Court usually lasts 1 to 3 days. During the hearing, the justices listen to the competing arguments put forward by the parties and ask questions. The parties are required to provide detailed written submissions to support their oral arguments.
Need for a dispute
It is important to note that the Court cannot decide a matter unless there is an actual dispute between the parties. This means that the Court cannot determine a legal issue simply because it thinks that it is an important issue which should be resolved, or the government or some other party wants a particular question answered. The Court must wait until parties in dispute ask the Court to hear the matter. For example, the scope of the Commonwealth’s external affairs power was a source of much discussion after Burgess was decided in 1936, but it was only in 1982, when the Queensland government challenged the Racial Discrimination Act in Koowarta (1982), that the Court had the opportunity to look at the issue again (see [5.25]–[5.27]).
Ordinarily, the High Court will not hear a matter if the parties are in dispute over the relevant facts. This is because it is often time consuming to determine the facts of a matter, and the Court would not be able to decide the 50 to 70 cases it hears each year if it first had to determine the facts. Where the High Court is hearing a matter which has not previously been heard by another court – that is, it is hearing a matter in its 'original jurisdiction' – it is common for the parties to agree to a statement of facts and for the case to be argued before the Court on that basis. This allows the Court to concentrate on its primary task of determining what the law is and should be. Where the Court is hearing matters on appeal from a decision by a lower court, it determines the appeal using the material before that court and will not allow new evidence to be introduced. Its function is to determine, on the material before the lower court, whether the court made the correct decision as a matter of legal principle.
Judgment
Once the Court has heard argument it ordinarily 'reserves' its judgment. This means that the Court does not give its decision immediately – it adjourns to consider how the case should be decided. Usually between 4 and 6 months later it delivers its written judgment.
If all the justices agree, they may deliver one joint judgment. Alternatively, several justices may deliver a joint judgment and other justices may deliver separate concurring judgments because they may agree with the outcome but differ in their reasoning or they simply want to express reasons in their own words. However, it is common for the justices to disagree, in which case there will be dissenting judgments. Generally, the more significant the issues raised by the case, the greater the likelihood of disagreement. Indeed, most of the cases mentioned in this book were not decided unanimously. In the case of disagreement, the majority view prevails.
The High Court’s role in interpreting the Constitution
As cases such as the Franklin Dam case (1983) (see [5.28]–[5.32]) and Love and Thoms (2020) (see [3.62]) demonstrate, there is often quite profound disagreement between justices as to the right result in constitutional cases.
There are several reasons why such disagreements arise. First, the High Court only hears the most difficult cases, and these necessarily raise issues upon which reasonable people can differ. Secondly, the text of the Constitution is drafted at a high level of generality. No attempt was made, or could sensibly have been made, to foresee and deal with the innumerable issues that inevitably would arise. Instead, the Constitution’s application in a particular case depends on principles and approaches that have developed over time and continue to evolve through the Court’s reasoning.
Thirdly, much of the meaning of the Constitution, as we have seen, is based on implications drawn from its text and structure. For example, it is not possible to resolve the issues raised by the Franklin Dam case (1983) by simply reading the text of the Constitution. Typically, each justice has to weigh up a number of competing considerations and determine which he or she finds most compelling. Further, constitutional interpretation does not take place in a vacuum. As this book demonstrates, constitutional law is complex and interacts with a wide range of political, social, cultural, international and historical developments.
How does a justice determine whether a law is constitutional? It is clear that in performing this role a High Court justice does not simply decide whether he or she approves of the legislation. In this respect, the role of the Court in determining whether an Act is constitutionally valid differs fundamentally from the role of Parliament in determining whether to pass that Act. For example, in the Franklin Dam case (1983), no justice was influenced by whether he thought the dam was a good or bad idea. Also, no justice was influenced by his view of whether a particular decision would be popular with the general public.
Precedent
Instead, a High Court justice is guided by a number of judicial principles. Perhaps the most basic of these principles which applies to all judicial decisions – constitutional and non-constitutional – is the doctrine of precedent. Under this doctrine, the Court should ordinarily follow its previous decisions. The doctrine of precedent does not necessarily prevent the Court from changing its mind and overturning a principle which it had laid down in a previous case. The Engineers case (1920) (discussed at [5.10]) is an example of where the Court overturned a previously established principle.
Indeed, the Court has been more ready to change its views on constitutional matters than on other legal issues. The Court sometimes suggests that a number of factors should be taken into account in determining whether to overturn a constitutional decision, including how long the decision has been in place, whether it is part of some broader body of principle and the extent to which governments and individuals have relied on the decision. But the experience of the last 40 years suggests that the Court does not often address the question of overruling or departing from one of its previous decisions in this structured way. The position is more that the Court respects and consistently applies a number of basic principles so that there is some stability and predictability in the framework of constitutional interpretation. Beyond this, there are many contestable issues of constitutional interpretation, and in resolving those issues the Court does not usually apply its previous decisions unless the Court still agrees with those decisions. This approach reflects, as discussed, the complex task of interpreting the Constitution given its special nature and purpose.
Centralists or states-rightists
Traditionally, one of the most popular ways of describing a High Court justice’s approach to constitutional interpretation was by the label 'centralist' (supporting a broader view of Commonwealth power) or 'states-rightist' (supporting a narrower view of Commonwealth power and therefore a broader view of the States’ powers). The distinction reflected that traditionally most constitutional disputes centred on whether the Commonwealth had power to regulate particular matters or whether this was an area only for the States.
Nowadays, the labels of centralist or states-rightist are used less often, mostly because many contemporary constitutional disputes turn not on whether the Commonwealth or the States have power in an area but on whether there is some express or implied restriction on Commonwealth or State power. Nevertheless, looking at the Court’s approach to the scope of Commonwealth power remains one principal indicator of its approach to constitutional interpretation.
One of the most important principles which the Court applies in interpreting the Constitution is the notion that Commonwealth powers should be interpreted broadly without regard to the effect this broad interpretation would have on the residual powers of the States. Even here, however, there has traditionally been disagreement between the justices. A good example of this division is shown by the Court’s decision in the Franklin Dam case (1983), discussed at [5.28]–[5.32]. More often than not, the justices who favour a broad view of Commonwealth power have prevailed.
Legalist, structural and purposive construction
For much of the period up until the 1980s the High Court purported to apply an approach of 'strict and complete legalism' when interpreting the Constitution. The concept of 'legalism', or 'textualism', is based on the view that the resolution of many constitutional issues does not necessarily involve making contestable choices between competing considerations; rather, they can be determined through the proper application of legal reasoning and technique. This approach tended to place greater emphasis on the text and structure of the Constitution than on the underlying purpose of the provisions and avoided attempts to ascertain that purpose by looking at extrinsic material such as the convention debates (as to which, see chapter 2).
The focus on legalism had the benefit of protecting the Court from suggestions that it was impermissibly intruding into the political sphere. But it had some drawbacks. The interpretation of section 92 provides a good example of the difficulties which may sometimes arise in attempting to resolve certain constitutional issues through the application of legalism. A textual interpretation of section 92 might suggest that interstate trade and commerce is to be free from government control. On this view, section 92 becomes a constitutional guarantee of free trade and of an individual’s right to engage in interstate trade and commerce. But it cannot sensibly confer an unlimited right to engage in such trade or commerce. For example, it must be possible for a parliament to prohibit the interstate trade of illegal drugs. However it is difficult on a strict legalist approach to section 92 to identify a principled or consistent basis for qualifying the right to engage in this kind of trade and commerce.
A different approach is to focus on why section 92 protects interstate trade and commerce and not trade and commerce within a State, or trade and commerce generally. This line of inquiry, coupled with the knowledge that one of the primary aims of federation was to create a free trade area throughout Australia, suggests that section 92 is concerned only with prohibiting laws which have a protectionist purpose or effect; that is, laws that discriminate against interstate trade in favour of the intrastate trade of a State. It is this view of section 92 that the High Court ultimately adopted in Cole v Whitfield (1988), which we discuss at [9.18]. In that case, the Court relied heavily on the history of section 92 – in particular, the convention debates – to determine the relevant purpose of the federation movement, and section 92.
Contemporary ideas
Beyond the debate between 'legalism' and 'purpose' is the question of how much justices can infuse the Constitution with contemporary conceptions of democracy and justice. This issue is the subject of strong argument in the United States between those who see the Supreme Court’s role as simply interpreting the text of the Constitution and those who see it as able to go beyond the text of the Constitution to develop a just and ethical modern legal framework.
This issue has emerged in the High Court in particular in relation to the interpretation of rights in the Constitution. The traditional view was that the Constitution is primarily concerned with the division of political power between different levels or arms of government and says little about the relationship between government and the individual, which we discuss in chapter 9. After 1985, however, several justices challenged this view by identifying a number of implied rights in the Constitution and interpreting provisions (which had previously been viewed as machinery of government provisions) as also guaranteeing certain basic rights. In some cases the articulation of these rights has been influenced by contemporary conceptions of justice and democracy.
This debate goes to the very nature of the Constitution. Interestingly, Andrew Inglis Clark, one of the principal architects of the Constitution (see [2.27]), wrote that:
the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document ...
Others are more cautious. Justice McHugh of the High Court stated in Theophanous (1994):
If this Court is to retain the confidence of the nation as the final arbiter of what the Constitution means, no interpretation of the Constitution by the Court can depart from the text of the Constitution and what is implied by the text and the structure of the Constitution.
As the Court’s decision in Love and Thoms (2020) demonstrates (see [3.62]), it is likely that this will be an area of continuing debate. In that case there was a strong disagreement between the majority and minority justices. On the one hand, the majority justices thought that the concept of aliens in section 51(xix) of the Constitution should now be interpreted in light of the modern acknowledgement of the unique cultural and spiritual connection of Indigenous peoples to their land and the recognition of this connection in Australian law, particularly the law of native title (see [10.20]–[10.29]). On this basis Parliament could not treat Aboriginal people as being included in the meaning of the term 'aliens' in the Constitution. On the other hand, the minority justices took the view that 'alien' continued to have its traditional meaning of a person who did not owe allegiance to the body politic Australia and that this could include an Aboriginal person who was not an Australian citizen but the citizen of another country. On this basis the dissenting justices thought that Parliament could treat such Aboriginal people as being included in the meaning of the term 'aliens' in the Constitution.
Conclusion on High Court’s approach
In more recent years, the High Court has acknowledged what a review of the Court’s decisions might suggest has always been true – that questions of constitutional construction 'are not to be answered by the adoption and application of any particular all-embracing and revelatory theory or doctrine of interpretation' (SGH Ltd (2002), Marriage Equality case (2013)). The text and structure of the Constitution will always be relevant, but, as indicated, the nature of many constitutional issues means that other considerations and approaches may also need to be taken into account to achieve a satisfying and enduring resolution of those issues.
