Definition:
• Superior court in hierarchy
• Directly established
• Original jurisdiction
• Appellant jurisdiction
• Interpret & apply
• Constitution establishes, outlines & powers of judicature
• Starting at section 71…
-judicial power of commonwealth vested in supreme
court, to be called HC of Aus., the HC consist of a CJ,
many other justices, not less than 2, as parliament
prescribes.
Definition:
• Matters originally heard
• Actual original jurisdiction, in regard to ‘All
Matters’(s75):
-Treaty
-Consuls or other representatives
-Person suing/being sued, is a party
-Between states, residents or both
-Writ of mandamus, prohibition, injunction,
sought against an officer
• Conferral creates some problems:
-Immigration related decisions, against an officer
• Potential original jurisdiction, parliament may
confer in relation to (s76):
-Arising the constitution, or interpretation
-Arising under any laws made
-Admiralty & maritime
-Relating subject-matter, laws of different states
•
•
•
•
•
•
•
•
•
•
Defined under section 73
High court hear appeals from supreme,
Any federal court or court exercising,
Decisions made by 1 or more justices
S73 allows appellant to be limited, such exceptions
& subject, regulations
Parliament a large limitation, s35A of Judiciary Act
1903
Requires “special leave”
Special leave, only granted, a question of law, public
importance
Or involves conflict, in interest admin of justice
While the HC is final court, cannot be general
Intro:
•
•
•
•
Many do not see phases, trends
Scholars attempted, characterise eras
1903 HC major impacts, on federal division of powers
Decisions divided into historical phases:
-Phase 1:1903-1920
-Phase 2:1920-1942
-Phase 3:1942-1970
-Phase 4:1970-1996
-Phase 5:Contemporary approaches
• Meant major theme, understand “intent”/desire of founders
sentiments.
• States rights upheld, assistance US supreme.
• 3 original justices, HC applied presumptions, not found in
text, derived by implication, federal scheme, interpretation.
• Doctrine of implied immunities, doctrine reserve state
powers, implied prohibitions
• 1903-1920, court interpreted constitution, favour of states,
residual powers.
• Primarily, first 3 justices, part in framing.
• Landmark cases
-D’Emden’s Case (1904)
-Peterwald’s Case (1904)
• Meant judicial emphasis, upon actual literal meaning, of
words, looking back, what the founders may/may not
founded.
• Engineers’ case-Dispute between, Amalgamated society & engineering &
sawmilling, by WA.
-Commonwealth sought legislate, under s51 had power
make laws, state based, dispute extended beyond.
-HC agreed, broader interpretation, industrial powers,
ruling industrial law apply WA, & by implication other
states.
• Literalist interpretation saw cases, both ways, no
major extension.
• 1945-late 1960s, court returned to policy,
protecting states rights, maintaining federalism,
mixed results.
• Period essentially neutral for HC.
• Landmark Cases-Noarlunga Meat Case (1954)
-State Banking Case (1947)
-Communist Party Case (1951)
• Meant the emphasis judicial interpretation,
placed upon application of Const.,
contemporary society.
• Since 1970 HC given broader interpretation,
commonwealth powers.
• Landmark Cases-Bass Strait Pipeline Case (1983)
-Crayfish Case (1988)
• Considerable change of personnel in 1990s.
• Decisions more legalist than activist.
• HC more cautious approach, extent of individual
rights protected.
• ‘Implied rights’ redefined, specific limits on gov.
powers.
• Rejected any notion, const contained extensive
rights, could render other statutes.
• Landmark Case-Hindmarsh (1998)
• Tasmania attempted to build the Franklin Dam
which would flood the south west and Gordon
rivers
• The labor party promised to stop the dam and as
a result got voted in
• The High court then rejected the challenge to
stop the construction
• The Justices found the commonwealths claim
that this region is covered by world heritage a
valid use of external powers which gave federal
government power to stop the construction
• Crayfish brought in from Victoria were
undersized in Tasmania's laws
• Court created legal precedent by
overturning any state or commonwealth
act.
• This precedent increased power to
regulate business and engage in
commercial activity.
• Australian capital television limited
challenged the commonwealths political
broadcasts and disclosures act.
• Seen as unconstitutional as we are
representative government
• This was significant as it was the first time
the court had identified political freedoms
or rights
• In 1992, the Mabo case occurred which formed
the basis of the precedent of the native title
rights for indigenous people.
• Australia’s first legal principle for this was terra
nullius, which meant that the land was vacant,
allowing for the creation of new laws
• Court found terra nullius inconsistent with
current values of society and other British
settlements
• Dr Andrew Theophanous, a member of
parliament sued the Herald and the Weekly
Times for alleged defamation
• The High court, basing its decision on the
responsible government which is stated on
the constitution found that this claim was
invalid.
• The reason being is that freedom of speech
about the government is an implied right