High Court of Australia (Booklet 7)

Define Judicial Independence

Separation of the judicial branch from the executive and legislative branches to prevent external influence on legal decisions.

Define Jurisdiction

‘Where the law speaks’: the authority to determine facts, interpret the law, and make orders to resolve particular disputes.

What is the ‘High Court of Australia’?

Australia’s apex court established under Section 71 of the Constitution.
It serves as the nation’s constitutional court and final court of appeal.

Define Original Jusidiction

The authority of a court to hear and determine matters in the first instance.

Define Appellate Jurisdiction

The authority of a court to hear and determine appeals from lower courts.

Define Constitutional Interpretation

The power to adjudicate disputes regarding the Commonwealth Constitution (Australia). Vested in the High Court under s76 and s30 Judiciary Act (1903).

What is the ‘Court of Dispute Returns’?

The High Court has jurisdiction to review the validity of federal elections.

Define Judicial Power

The power to adjudicate disputes and make legally binding decisions. It is vested in courts of law.

o   a particular judgment of a court

e.g. judicial review

o   a judgment of the High Court regarding who/how a Member of Parliament is replaced after an elected MP is disqualified (sitting as the Court of Disputed Returns)

o   a decision of the High Cout not to hear a case (refusal to grant special leave)

Define Precedent

A decision made in a superior court that serves as a guide in cases with similar factual circumstances.

Define Appeal

An application to a superior court to review a decision that may have contained an error of fact and/or law.

Define Landmark Decision/Judgement

A signifcant court decision that establishes a new legal principle (precedent) or substantially alters the interpretation of existing law. They have wide-reaching impacts.
e.g. HCA cases about constitutional interpretation, implied rights or freedoms.

What is a ‘Common Law Case’?

A legal dispute in which courts use precedents to apply the law, particularly where statutes are unclear.

What are the ‘Roles of the HCA’?

• Constitutional interpretation (s76(i); Judiciary Act 1903)

• The final court of appeal (s73)

• Resolve disputes between States (s75(iv))

• Judicial review (s75(iii), (v))
  (interpret validity of legislation and Cabinet policy)

• Sit as the Court of Disputed Returns (Cth Electoral Act 1918)
  (maintain integrity of electoral system)

What are the ‘Powers of the HCA’?

• Create common law (establish and clarify precedent)

• Uphold separation of powers
  (determine scope of legislative and executive powers)

• Protect rights and modernise the Constitution
  (discover and clarify implied rights)

• Change federal balance of power

• Hold judiciary to account
  (overturn decision on appeal)

Which Chapter of the Constitution establishes the judiciary?

Chapter 3

How are Justices appointed to the HCA?

By the Governor-General in Council under s72 of the Constitution.
s6 of the High Court of Australia Act 1979, the Attorney-General consults with state governments, senior judges, and the legal profession before recommending appointments to the Prime Minister and Cabinet (FEC).

Can Justices be removed from the HCA?

Yes. Only by the Governor-General in Council on address from both Houses of Parliament in the same session, praying for removal on the grounds of “proved misbehaviour or incapacity.”

What age must Justices of the HCA retire?

70 years old.

Can Justices salaries be decreased while in office?

No.

How is the current Chief Justice of the HCA?

Chief Justice Stephen Gageler (NSW) - 2012

How many Justices total are currently in the HCA?

Seven. This is to ensure split decisions do not occure and aid in managing court’s workload.

How are Justices appointed to the SCOTUS?

Nominated by the Potus - therefore often politices positions.
The Senate holds a confirmation hearing, either appointing or dismissing the nominated Justice.