Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
Council. Recourse to the Privy Council was finally removed in 1986, leaving the
High Court as the apex court and, as such, the ultimate arbitrator of the law in
Australia. 3
Upon its creation the High Court was also given its own original jurisdiction
by the Australian Constitution (the Constitution). Although not expressly provided
for in the Constitution, this jurisdiction (borrowing from the USA) was assumed
to include the ability to invalidate legislation that is not supported by, or is contrary
to, the Constitution. As a matter of convenience, the Constitution also allowed state
courts and other courts that may be created by the Commonwealth parliament to
be given the ability to exercise federal/Commonwealth judicial power. This has led
to an integrated, albeit complex, court system. 4
What decisions do courts make?
Although eluding precise definition, 5 the classic starting point for determining
what a court does (i.e. what judicial power is) is the following statement of Griffith
CJ in Huddart, Parker and Co. Pty Ltd v Moorehead:
I am of the opinion that the words ‘judicial power’ as used in sec. 71 of the
Constitution mean the power which every sovereign authority must of necessity
have to decide controversies between its subjects, or between itself and its subjects,
whether the rights relate to life, liberty or property. The exercise of this power does
not begin until some tribunal which has power to give a binding and authoritative
decision (whether subject to appeal or not) is called upon to take action. 6
[emphasis added]
This statement can be said to have three key components: controversies, rights and
a binding and authoritative decision.
The controversies that the courts typically decide can be divided into two legal
categories: private law and public law. Private law incorporates disputes between
‘subjects’ or citizens and includes, for example, tort, contract and defamation law.
Public law on the other hand generally involves disputes between government
and its citizens or disputes between governments (e.g. state versus state or state
versus Commonwealth). It typically encompasses constitutional, administrative
and criminal law. However, due to its importance, criminal law is often treated as
its own separate category.
The ‘rights’ that courts adjudicate upon are existing ‘legal rights’ rather than
future rights (the creation of future rights is generally seen as a legislative power).
3 Australia Act 1986 (Cth), section 9; Australian Act 1986 (UK), section 9.
4 Crawford and Opeskin 2004, 21.
5 Williams, Brennan and Lynch 2018, 597.
6 Huddart, Parker and Co. Pty Ltd v Moorehead (1909) 8 CLR 330.
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