Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
a federal court guaranteed, their independence and integrity cannot be undermined
by giving them, for example, a political and potentially damaging function.
State courts, which were created like their English counterparts, are not protected
by a strict separation of judicial power. 31 This means that state parliaments can
vest state judicial power in other institutions or require courts to undertake nonjudicial
roles. However, as state courts are now part of an integrated court system
under the Constitution and can be vested with federal judicial power, the High
Court has held that there is a limit to what state parliaments can require them to do
as they must continue to bear the essential or defining characteristics of a court. This
isknownastheKableprinciple. 32
The defining characteristics that have been said to be attributable to all courts,
whether federal or state, include not only the ‘reality and appearance of the court’s
independence and impartiality’ 33 but also important aspects of the judicial process
traditionally applied by the courts in reaching a decision, such as:
• ‘the application of procedural fairness’
• ‘adherence, as a general rule, to the open court principle’
• ‘theprovisionofreasonsfordecisions’. 34
Political impact of the High Court
As one of the three arms of government, the role of the courts is inherently political.
ThisisparticularlytrueoftheHighCourt,whichisAustralia’sapexcourtand
the final interpreter of the Constitution. The High Court’s judgements can have,
and have had, a significant and lasting impact on the shape of Australia’s ‘political
system and process’. 35 Further, as Turner has observed, the High Court ‘is an
important political forum used to advance or stymie political programs’, its
decisions ‘have significant political and societal implications’ and cases may be
brought before it to try and influence government policy. 36
Despite the central role it has played and continues to play in Australian
politics, the High Court inevitably seeks to disavow any direct connection between
politics and what it says it is doing in interpreting and applying the law. This is
reflected in Latham J’s classic and often quoted assertion that:
the controversy before the court is a legal controversy, not a political controversy. It
isnotforthisoranycourttoprescribepolicyortoseektogiveeffecttoanyviews
31 Clyne v East (1967) 68 SR (NSW) 355.
32 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
33 French 2012, 5.
34 French 2012, 5.
35 Irving 2009, 116, describing observations of Galligan 1987, 1.
36 Turner 2015, 358–9.
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