The Impact of Landmark Decisions made by the High Court

1. The Impact of Landmark Decisions made by the High Court

2. The Role Of The High Court 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.

3. Original Jursidiction 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

4. Original Jurisdiction • 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

5. Appellate Jurisdiction • 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

6. Significant Phases of the Courts Jurisdictional History 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

7. Phase 1: Intentionalist • 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)

8. Phase 2: Legalist • 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.

9. Phase 3: Neutral Period • 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)

10. Phase 4: Activist Court • 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)

11. Phase 5: Contemporary • 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)

12. 1983 Tasmanian Franklin Dam • 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

13. 1988 Tasmanian Crayfish • 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.

14. 1992 Australian Capital Television • 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

15. 1992 The Mabo Judgement • 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

16. 1994 Theophanous • 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