Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
Perhaps somewhat ironically, it is in the cases in which legislation has been upheld
that the inherently political nature of the High Court’s role in formulating and
applying the freedom of political communication and the right to vote is most clear.
This is because in applying the ‘appropriate and adapted’ test the High Court judges
are openly balancing the policy goals that the legislature has sought to achieve
against their own assessment of the effect on, and value of having, an ability to vote
or freedom of political communication.
Conclusions
While the courts’ role in Australia can be simply described as interpreting and
applying the law, in reality it is far more complex. This complexity is due to the
myriad controversies that the courts must adjudicate upon, necessitating a
combination of generalist and specialist courts that all sit within a hierarchy in
which they are ultimately answerable to the High Court. It is also complex because
choices may be made, particularly by the High Court when interpreting the
Constitution, that have far reaching repercussions. These repercussions can extend
to a change in the balance of power between state and federal governments or the
protection of some rights from legislative encroachment.
References
Allan, James, and Nicholas Aroney (2008). An uncommon court: how the High Court of Australia
has undermined Australian federalism. Sydney Law Review 30(2): 245–94.
Aroney, Nicolas (2018). Constitutional fundamentals. In Augusto Zimmermann, ed. A commitment
to excellence: essays in honour of Emeritus Professor Gabriel Moens. Brisbane: Connor Court
Publishing.
Burton Crawford, Lisa (2017). TheruleoflawandtheAustralianConstitution. Annandale, NSW:
Federation Press.
Crawford, James, and Brian Opeskin (2004). Australian courts of law, 4th edn. Oxford; NewYork:
Oxford University Press.
Creyke, Robin, David Hamer, Patrick O’Mara, Belinda Smith and Tristan Taylor (2017). Laying down
the law, 10th edn. Chatswood, NSW: Lexis Nexis Butterworths.
Creyke, Robin, John McMillan and Marky Smyth (2015). Control of government action, 4th edn.
Chatswood, NSW: LexisNexis Butterworths.
French, Robert (2012). Two chapters about judicial power. Paper presented at the Peter Nygh
Memorial Lecture 2012, 15th National Family Law Conference, 15 October.
Galligan, Brian (1987). Politics of the High Court:a study of the judicial branch of government in
Australia. St Lucia: University of Queensland Press.
Galligan, Brian, and F.L. (Ted) Morton (2017). Australian exceptionalism: rights protection without a
bill of rights. In Tom Campbell, Geoffrey Goldsworthy and Adrienne Stone, eds. Protecting
rightswithoutabillofrights:institutionalperformanceandreforminAustralia, 17–39. London:
Taylor and Francis.
Gleeson, Murray (2008). The role of a judge in a representative democracy. Judicial Review 9(1):
19–31.
180