Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
native to the soil and the term expedient acknowledges that it was seen as a
practical measure to both simplify the resolution of disputes that may be brought
before a court under the Constitution, common law or state legislation 21 and delay
the need and cost of setting set up a new federal court structure beneath the High
Court. 22 Even now that a quite extensive federal court system has been created, the
state courts continue to hear most criminal cases brought under federal law. 23
Although not expressly provided for in the Constitution, Australia’s court
system has become even more integrated through cross-vesting legislation passed
by the Commonwealth and by each state and territory, allowing the Supreme
Courts (and to a lesser extent the Federal and Family Courts) to exercise each
other’s jurisdiction. The Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
provides, for example, that in civil matters the Supreme Courts can exercise federal,
as well as other states’, jurisdiction. It then provides for the transfer of proceedings
to the most appropriate court. However, while federal jurisdiction can be vested in
state courts, the Constitution does not allow state jurisdiction to be vested in federal
courts. 24
Key constitutional principles
There are a number of fundamental doctrines found in the Constitution. They
include ‘the rule of law, judicial review, parliamentary sovereignty, the separation
of powers, representative democracy, responsible government and federalism’. 25
While each principle influences how courts operate in Australia, two principles in
particularcanbesaidtobepartofthecourts’DNA.Thesearetheruleoflawand
the separation of judicial power.
The rule of law
It is commonly accepted that the rule of law is an essential feature or sign of a
healthy democratic society. Yet, despite its importance, what the rule of law actually
means is highly contested. This is because it can be said to be a political rather
than legal concept or an aspirational rather than legal right. Nevertheless, most
conceptions of the rule of law start with the ideal that there should be known laws
that are administered fairly and that everyone is subject to, 26 whether they are poor,
rich, weak, powerful, a private citizen, a public servant or a member of parliament.
21 Crawford and Opeskin 2004, 40.
22 ReWalkim;ExparteMcNally(1999) 198 CLR 511, [200] (Kirby J).
23 Crawford and Opeskin 2004, 43.
24 ReWalkim;ExparteMcNally(1999) 198 CLR 511.
25 Aroney 2018, 1.
26 Burton Crawford 2017, 10–11.
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