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.
Table of Contents
I. Introduction
II. Main part
III. Conclusion
IV. Bibliography
Research Objectives and Topics
This essay examines the relative powers of the legislative and judicial branches in Australia, specifically questioning whether the Parliament or the High Court should be responsible for determining the rights and freedoms of citizens within the context of a democratic system lacking a formal bill of rights.
- Separation of powers and constitutional roles of the Parliament and High Court.
- The impact of implied rights and the absence of a constitutional bill of rights.
- Evaluation of judicial activism versus the democratic legitimacy of elected officials.
- The challenges of defining boundaries between law-making and law-interpreting functions.
Excerpt from the Book
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.
Therefore the Constitution shows that the legislative is responsible for making law and the judiciary for interpreting law.
In theory, it is clear what the two bodies have to do, but in practice it is difficult to say where the making of a law ends and where the interpretation begins.
The normal process is that a bill passes through Parliament and becomes act, but after that “courts are often asked to decide the meaning and the court’s interpretation of an act becomes law”(Healey, p.2).This quotation shows that the judiciary can play a part in law making as well. But how far goes the power of the judiciary in interpreting law in the Australian democracy?
Summary of Chapters
I. Introduction: This chapter introduces the core tension between the legislative and judicial branches in Australia and outlines the research question regarding the determination of human rights.
II. Main part: This section analyzes the constitutional roles of the Parliament and the High Court, discusses the implications of the absence of a bill of rights, and critiques the rise of judicial activism.
III. Conclusion: This chapter synthesizes the arguments and concludes that parliamentary authority is preferable for determining rights due to its superior democratic legitimacy.
IV. Bibliography: This section lists the academic sources, legal documents, and literature utilized to support the essay's analysis.
Keywords
Australian Politics, High Court, Parliament, Constitution, Separation of Powers, Judicial Activism, Human Rights, Democracy, Legislative Branch, Judiciary, Legal Interpretation, Democratic Legitimacy, Rule of Law, Political Power
Frequently Asked Questions
What is the primary focus of this essay?
The essay explores the power dynamics between the Australian Parliament and the High Court, specifically regarding who should hold the authority to define and protect the rights and freedoms of Australian citizens.
What are the central themes discussed?
The core themes include the constitutional separation of powers, the distinction between making law and interpreting law, the impact of judicial activism, and the challenges posed by the absence of a formal bill of rights in Australia.
What is the author's research question?
The author asks whether it is preferable for the High Court or the Parliament to determine the rights and freedoms of Australians.
Which methodology is employed in the work?
The work employs a qualitative analysis of the Australian Constitution, traditional democratic theory, and legal literature to examine the roles and limitations of the two respective government branches.
What does the main part of the essay cover?
The main part reviews constitutional articles (Art. 51, 52, 73, 76), the practical challenges of separating law-making from interpretation, and the arguments for and against judicial involvement in shaping rights.
How are the key terms for this work characterized?
The work is characterized by terms related to political science and constitutional law, focusing on the intersection of judicial authority, parliamentary sovereignty, and democratic accountability.
Why does the author argue that judicial activism can be problematic?
The author argues that because judges are appointed rather than elected, they lack the direct democratic legitimacy of Parliament, and their involvement in law-making threatens the system of checks and balances.
What role does the "legal grey area" play in the author's argument?
The "legal grey area" is defined as the lack of clear constitutional regulation regarding who defines rights, which allows both the Parliament and the High Court to compete for political power.
- Quote paper
- Diplom Volkswirt; M.A. Jan Henkel (Author), 2004, Should the High Court or the Parliament determine the rights and freedoms of Australians, Munich, GRIN Verlag, https://www.grin.com/document/54931
