University of Sydney
Faculty of Economics and Business
Government and International Relations
Course: Australian Politics

ESSAY

“Should the High Court, or the Parliament,
determine the rights and freedoms of Australians?”

Author: Jan Henkel

I. Introduction

It is known that in a democracy there are, in general, three different branches of the government: the legislative, the executive and the judicial branch. This essay explores the relative powers of the legislation and the judiciary in determining the freedoms and rights of modern days Australians. It specifically questions whether the High Court or the Parliament should determine the rights and freedoms of Australians.

If you examine modern day theories of democracy, you will discover that the legislative branch of government is traditionally responsible for making law and the judiciary for interpreting law. These two bodies, as they are respectively known in Australia, are the Parliament and the High Court. Between these two bodies, an intimate relationship exists that inevitably leads to interpretive and political conflicts, namely because it is "the judge it is who must decide what the Act means" (Gifford, p.39).

The main difficulty of this implicit conflict is a subjective determination concerning exactly where the power of the legislation, in our case the Parliament, ends and where the power of the judiciary, in our case the High Court, begins. In answering the main question of this essay, one must also address the relevant moral dimensions associated with this relationship. In adopting this methodology, I shall be able to decide which alternative is the better. Is it preferable if the High Court determines the rights and freedoms or should that be a task of the Parliament?

First of all I think it is necessary to emphasize the roles of the Parliament and the High Court in the Australian democracy. For that I would like to have a look into the Constitution of Australia and mention the traditional duties of the legislation and the judiciary in the separation of powers. After that I am going to discuss which freedoms and liberties should be protected in the Australian democracy. Are there pre-existing implied rights that are not mentioned directly in the Constitution and how can those rights be protected? Furthermore, I want to discuss if it is possible to protect those rights despite the fact that they are not mentioned directly in the Constitution. I also want to analyze the arguments for and against judicial activism, as well the issues relating to excessive judicial authority.

II. Main part

As I mentioned in the introduction I think it is first of all important to take a look into the Australian Constitution, because it regulates the tasks of the High Court and the Parliament in general.

Article 51 of the Constitution says that the Parliament¹ “shall have the power to make laws”. The Constitution also mentions several fields of politics where the Parliament has the exclusive power to make laws² (Art. 51 and Art. 52 of the Australian Constitution).

The High Court is “the apex of Australia’s legal system” (Summers et al., p.119). Article 73 of the Constitution mentions the jurisdiction of the High Court that describes where the judiciary has the responsibility to interpret the law.

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1 The Parliament is consisting of the House of Representatives and the Senate.

2 Such fields are laws for peace, order and good government of the Commonwealth etc.