11.4 The High Court Representative Government

implied rights

rights that are not expressly stated in the constitution but are considered to exist through interpretation by the High Court

standing

the requirement of a party to be directly affected by the issues or matters involved in a case for the court to be able to hear and determine the case

section 76

gives High Court it’s power to hear disputes arising under the constitution or involving its interpretation

High Court cannot change the words of the constitution but it can change what those words mean

Section 7 and 24

sets out the principle of representative government in the senate and house of reps respectively

both sections require the houses to be determined by the people

ways the High Court protects the principle of representative government

• restricting the ability of Commonwealth Parliament to make laws the infringe on the rights of people to vote in elections so they can choose members of parliament

• protecting the ability of people to freely communicate on political matters

  • so voters can make effective and informed decisions

Role of the High Court

• acts as a guardian of the constitution

  • able to explain constitution’s meaning and decides how to interpret it

  • by interpreting the wording, the High Court can have an influence of its application

• acts as a check for any abuse of power

  • if a parliament has passed a law outside its power, High Court can declare the law Ultra Vires

• gives meaning to the words by deciding what it mans to the case before it

Strengths of the High Court and Representative Government

• judges aren’t influenced by politicians, so they can protect representative government even when parliament doesn’t want to

• anyone with standing can take a case to the High Court, meaning parliament isn’t above the law

• Judges are highly trained and have strong legal resources so their decisions are well-reasoned

• the High Court and representative government are in the Constitution, so they can only be remoced by referendum

Weaknesses of the High Court and Representative Government

• Judges can only decide on the exact case before them, not create broad rules unless the case allows it

• The court can’t protect representative government unless someone brings a case, which is expensive and difficult

• outcomes can change depending on which judges are on the Court and whether they interpret the Constitution strictly or broadly

• future courts might interpret voting rights or political communication differently, changing the scope of representative government