10 Courts

The courts (also referred to as the judiciary) are a central and critical part of Australia’s constitutional system.^[1] They are one of the three arms of government, the other two being the legislature (also referred to as parliament) and the executive. Due to their lack of independent resources and enforcement mechanisms, the courts are often called the least powerful arm of government.^[2] Yet this description belies their actual importance.

The specific and essential role played by the courts is providing binding and authoritative decisions when controversies arise between citizens or governments, or between the government and its citizens, regardless of whether the rights in issue relate to life, liberty or property.^[3]

Historically, Australian courts are modelled on their English counterparts and, before federation, each colony had its separate court system ultimately answerable on questions of law to the English Privy Council in the United Kingdom. With Australia’s federation in 1901 the separate state systems continued but the court hierarchy was modified by inserting the High Court of Australia between the State courts and the Privy 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.

The Australian Constitution (the Constitution) provides the High Court with original and appellant jurisdiction.  Although not expressly provided for in the Constitution, this jurisdiction was assumed to include the ability to invalidate legislation that is not supported by, or is contrary to, the Constitution.^[4] As a matter of convenience, the Constitution also allowed for State courts and other courts that may be created by the Commonwealth Parliament to be given the ability to exercise Federal/Commonwealth judicial power. As will be seen, this has led to an integrated, albeit complex, court system.^[5]

In examining the nature and structure of the court system, this chapter will first provide a general overview of the type of decisions that courts make before examining in more detail how the courts operate by:

• Setting out the Historical Development of Australian courts, including the:
  • development of the common law; and
  • establishment of Courts in Australia.
• Describing the current court hierarchy.
• Examining the key constitutional principles of:
  • The Rule of Law; and
  • Separation of Powers.
• Considering the potential impact of High Court decisions on:
  • federalism;
  • rights protection; and
  • First Nation Sovereignty.

What decisions do courts make?

Although eluding precise definition,^[6] the classic starting point for determining what a court does, that is what is judicial power, is the following statement of Griffith CJ in Huddart, Parker and Co. Pty Ltd v Moorehead:

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). Such rights are found in the common law or granted by Parliament through statutes.

Perhaps the key and most essential power of the courts is to provide a binding and authoritative decision so that the dispute between the parties is finally determined, at least once any appeal process is completed (see the section on court hierarchy below). Once authoritatively determined, the decision, whether private or public in nature, can be enforced by the executive government if it is not willingly accepted by one of the parties.

Although not specifically mentioned in the statement of Griffith CJ quoted above, other cases emphasise the importance of a fourth feature of the court decision-making process, that is, to adjudicate a controversy by applying ‘judicial process’.^[8] What is ‘Judicial process’ will be touched upon when discussing the separation of powers doctrine. It is sufficient for now to observe that it is deciding a controversy ‘in accordance with the methods and with a strict adherence to the standards which characterise judicial activities’.^[9]

Historical development

The common law

The term common law reflects one of its theoretical aims, to create a ‘‘common’’ system of law. That is, a system of law that applies to all regardless of wealth, station or political influence. From a practical perspective, common law rules are created by the courts when they decide a dispute. To explain how the court has decided a particular dispute it issues a judgment explaining the rules of law that have been applied. The rules of law in these judgments or precedents, are then developed, modified or extended by later courts when they decide similar or analogous disputes. Courts that are lower in the court hierarchy must follow the precedents issued by higher courts. The requirement that courts follow the judgments of earlier courts is referred to as the doctrine of precedent.

Australia’s common law system is inherited from England. In England, the common law has existed since the twelfth century when the King appointed judges to act as ‘his surrogates’ to dispense justice. The judges were known collectively as the King’s Court.^[10] While originating in a time when the King of England ruled with almost absolute power, the common law was not developed to only and always benefit the King. Rather, the common law ‘was founded in notions of justice and fairness of the judges, consolidated by their shared culture, their professional collegiality, and a growing tradition’.^[11] Indeed, with the rise of the common law there also gradually developed a view that the King’s power was not absolute but was subject to limits. Of course, with further time, the King’s power diminished further while the power of a new institution, Parliament, grew. Parliament’s growth in turn has seen its rules of law, that is legislation, replace the common law as the most significant source of new rules.^[12] Yet Parliament’s rise has arguably changed the initial focus of the courts rather than diminished their significance. This is because their role is still to decide controversies brought before them by citizens or governments, it is just that they will now often start with a legislative rule rather than a common law one before examining precedents to determine how the legislative rule has and should be interpreted and how it has been applied by previous courts.

The establishment of courts in Australia

Before the First Fleet left for Australia in 1787, legislation and letters patent allowed for the creation of a criminal court and civil court respectively in New South Wales. These courts were established upon the First Fleet’s arrival but were initially staffed by military officers. Later when the first judge was appointed he was required to follow any order given by the governor who, for all intents and purposes, exercised both legislative and executive power. It was not until the passing of the New South Wales Act 1823 (4 Geo 4, c 96) that the colonial judges obtained the same level of independence and security of tenure held by their English counterparts.^[13]

The New South Wales Act 1823 also established separate Supreme Courts in NSW and Tasmania and provided for the establishment of inferior courts,  that is, courts below the Supreme Courts. Ultimately, a similar court system was established in each Australian colony and continues, with some modifications, today (though the inferior courts are generally called District, Local or Magistrate’s courts today). An appeal from the colonial courts was available to the English Privy Council until the passing of the Australia Acts in 1986.^[14]

On 1 January 1901 the Constitution came into effect and with it the birth of the Commonwealth of Australia. As previously observed in Blackshield and Williams:

Consequently, the colonial, now state, court systems continued, but there would now also be federal courts and, in particular, the creation under section 71 of the Constitution of the High Court of Australia. Under sections 75 and 76 of the Constitution, the High Court could hear and decide certain matters involving Commonwealth power, that is, it would hear the matters in its original jurisdiction. Under section 73, the High Court was to also hear appeals from the Supreme Courts of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia and any federal courts that would be created.

It was clear that the High Court of Australia was generally to operate in the same manner as the English common law courts. However, there was to be one significant difference. Because England did not have a written constitution, the English courts accepted that they did not have a constitutional role in the sense that they did not rule on the constitutional validity of English legislation. In contrast, borrowing from the United States, which did have a written constitution, it was assumed that the Australian High Court would declare Australian legislation (whether state or Commonwealth) invalid if it exceeded its constitutional power or infringed an express or implied limit in the Constitution.^[16]

The Constitution also provided in section 71 that the Commonwealth parliament could create other federal courts. Although creating a Federal Court of Bankruptcy in 1930 and an Industrial Court in 1957, it was not until the 1970s that a generalised system of federal courts was established. This began with the creation of the Family Court of Australia in 1975 and the Federal Court of Australia in 1976. As a result of the increasing workload in both the Family and Federal Courts, in 1999 the Federal Magistrates Court, later called the Federal Circuit Court, was created. The Family Court and Federal Circuit Court now exist as separate divisions in the Federal Circuit and Family Court of Australia.^[17]

Court hierarchy

A general overview

The Australian court system has many different courts with different responsibilities. Each court is regulated by an Act of parliament. The federal courts, including the High Court, are regulated by an Act of the Commonwealth parliament. The state courts are regulated by their respective state parliaments. The Australian Capital Territory and Northern Territory courts are also regulated by their respective parliaments, although they owe their ultimate existence to Commonwealth legislation.^[18]

Yet despite the number and different types of courts, there is a reasonably clear hierarchy, with the High Court at the apex of what can be described as a unified system.^[19] It is a hierarchy in the sense that courts are ranked from highest to lowest. Figure 1 provides a general overview of this hierarchy. The hierarchy in turn facilitates the operation of three important characteristics of the modern common law system: the balancing of specialist knowledge with more general legal knowledge; an appeal or judicial review process; and the doctrine of precedent.^[20]

While providing a general overview, Figure 1 can be said to be somewhat of a simplification for two reasons in particular. First, while the court system in each state and territory follows the general structure shown, in reality each system is more complex. Second, the division between federal and state courts may give the impression that state courts only exercise their respective state’s judicial power, however they also exercise federal power.

In each state and territory, it is generally accepted that courts lower in the hierarchy should deal with less important matters (both in monetary value and seriousness) and that for some types of cases there should be an initial hearing before a judge with expertise in the particular subject matter before them. Figure 2 provides an overview of the NSW civil court structure and Figure 3 provides an overview of the criminal court structure.

Greater integration: the exercise of federal judicial power by state courts

While the United States Constitution provided much of the inspiration for the drafting of Chapter III of the Constitution, dealing with the Federal court system, there were two very significant differences that have meant Australia’s court structure is far more integrated.

The first difference is that in the United States the federal and state court systems are quite distinct. As the figures show, in Australia the High Court hears appeals from federal, state and territory court systems. This has meant that the High Court has been able to establish ‘one Australian common law’^[21] rather than overseeing a different common law in each state and territory and at the federal level.

The second difference is that provision was made in sections 71 and 77(iii) of the Constitution for the Commonwealth parliament to not only create federal courts but to also allow state courts to exercise federal judicial power.^[22]

Giving state courts the power to exercise federal jurisdiction generally rather than in limited circumstances was a uniquely Australian development and is known as the autochthonous expedient.^[23] Autochthonous meaning indigenous or native to the soil and the term expedient acknowledging 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^[24] and to delay the need and cost of setting up a new federal court structure beneath the High Court.^[25] 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.^[26]

Key constitutional principles

Overview

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’.^[27] While each principle influences how courts operate in Australia, two principles in particular can be said to be part of the courts’ DNA. These doctrines are the rule of law and the separation of judicial power.

The rule of law

It is commonly accepted that an essential feature or sign of a healthy democratic society is the rule of law. 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.^[28] 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,^[29] whether they be poor, rich, weak, powerful, a private citizen, a public servant or a member of parliament.

While the rule of law is a cultural commitment shared between all three arms of government, the courts are, and see themselves as, central to its enforcement in Australia. The courts enforce the law not only by interpreting it and issuing authoritative and binding judgements but also by applying a process in which the parties in dispute can be seen to have received a fair hearing. This process culminates in written reasons. Written reasons are not only necessary for the doctrine of precedent to operate effectively, they also ensure that the parties and others who may be affected by the law know why the decision was reached. This, in turn, supports the presumption that the law is being administered in an open, public and ultimately fair manner. Importantly, and entwined with the doctrine of the separation of judicial power, this judicial process is designed to ensure that the law is administered as it exists and not as the executive government desires or believes it should be. In this regard, the High Court has emphasised that ‘all power of government is limited by law’ and that it is role of the judiciary to enforce the law and the limits it imposes.^[30]

The separation of judicial power

A separation of powers exists when the power of government is divided between the legislature, the executive and the courts. Generally speaking:

A strict separation of powers is enshrined in the United States Constitution, but it has never existed in England. However, even in England parliament has recognised the importance of an independent judiciary since at least 1701.^[32] Australia has adopted somewhat of a middle ground between the English and United States approaches. It is an approach that only applies a strict separation of power to federal courts (which includes the High Court) yet still provides the state Supreme courts with a significant level of independence.

Federal courts owe their existence to the Constitution, which creates a strict separation of power between the courts and the other two arms of government. This separation of judicial powers is commonly known as the Boilermakers’ principle. This principle provides that only courts created under, or given power through, Chapter III of the Constitution can exercise Commonwealth judicial power and that the same courts are not to be given or to exercise Commonwealth executive or legislative powers, with some established exceptions.^[33] Consequently, not only is the independence of 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.^[34] This means that state parliaments can vest state judicial power in other institutions or require courts to undertake non-judicial 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 is known as the Kable principle.^[35]

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’^[36] 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; the provision of reasons for decisions’.^[37]

Political impact of the High Court

Overview

As one of the three arms of government, the role of the courts is inherently political. This is particularly true of the High Court, which is Australia’s apex court and 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’.^[38] Further, as Turner has observed, it ‘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.^[39]

Yet, 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:

This is in effect an assertion that law is separate from politics. It is a form of reasoning typically described as legalism – that is, the court will decide matters by reference to existing rules and principles, not policy considerations.^[41] However, it is a form of reasoning that can be said to be astutely political in and of itself as it seeks to insulate the courts from political controversy by downplaying the ability of judges to make choices when deciding cases.^[42] While it is true that judicial methodology provides some important constraints, particularly the appeal system combined with the duties to apply precedent and to provide a rational explanation of how a decision is reached,^[43] it does not mean there is only one correct answer that can only ever be reached – there are inevitably judicial choices that lead to different results. These choices can have significant political consequences. By way of example, how the High Court’s ‘choices’ have impacted federalism, protected certain rights and impacted First Nations people will be briefly considered.

Federalism

The Constitution created a federation with a central federal/Commonwealth government and state governments. To protect the autonomy of the state governments, the Constitution listed specific subjects that the federal parliament could pass legislation on while leaving everything else to the states.^[44] The Constitution also allowed the states to continue passing legislation on most subject matters allocated to the federal government.^[45] However, once there was federal legislation, it was to prevail to the extent that there was any inconsistency with the state legislation.^[46]

As the arbiter of the Constitution, the High Court was responsible for determining precisely how this constitutional allocation of power between the federal and state governments was to work. In undertaking this task, the Constitution was at first interpreted in a way that intentionally favoured the states, but then a choice was made to change course, leading to an interpretation that has favoured the Commonwealth ever since. These choices will be briefly outlined. What will not be addressed, but is worthy of further study, is whether these choices have played a pivotal role in emasculating the powers of the states to an extent unforeseen by the founding fathers,^[47] or are better understood as reflecting broader historical changes that in reality were responsible for the shift in ‘power and authority to the centre of Australian governance’.^[48]

The first doctrine or rule developed by the High Court to help explain how power is to be allocated between the federal and state governments was the ‘implied immunity of instrumentalities’. Inspired by American jurisprudence, this doctrine was based on the notion that each government was sovereign and, as such, neither the Commonwealth nor states could tell the other what to do unless the Constitution expressly allowed them to do so.^[49] This meant, for example, that the states and Commonwealth could not tax each other^[50] and a union representative for a state government agency could not be registered under Commonwealth labour laws.^[51]

The second interpretative tool developed by the early High Court was the ‘reserved state powers doctrine’. As explained by Blackshield and Williams, this meant that:

This doctrine unequivocally favoured the state governments as it was premised on the assumption that the states would continue to be the forum in which the majority of policy decisions were made. Combined with the implied immunity of instrumentalities, it supported the status quo. The status quo being at that time powerful state governments with a federal government largely limited to matters of a genuinely national nature (which is what the subjects allocated to the federal government in the Constitution were thought to be).^[53]

However, the High Court’s early choice to protect the power of the states was not universally popular. After the appointment of further High Court justices and the retirement or death of the three initial judges who had created the two doctrines, a choice was made to interpret the Constitution in a very different way. This choice is most clearly seen in the iconic Engineers case.^[54]

In the Engineers case the High Court rejected the implied immunity of instrumentalities and reserved state powers doctrines. Based on English/Imperial jurisprudence, it chose to view the Constitution as an Imperial statute (which it technically was, having been passed by the Imperial parliament in England) rather than a federal compact. On this view, the Imperial parliament was simply distributing power between the federal and state governments. The governments were not in competition with each other in the sense that the grant of power to one should not be viewed as diminishing the power of the other.^[55] While strictly speaking this change in approach did not necessarily favour the federal government, history has shown that it has. This is because the court has generally been willing to read the powers given to the federal government expansively, with the result that the federal government has been able ‘to advance into areas previously held to be within the powers reserved to the state legislatures’.^[56] Examples of such advancement include where the federal government has been able to rely on its power to legislate in respect of:

1. ‘external affairs’ to:
   • pass racial discrimination legislation applying across Australia^[57]
   • stop the building of a dam by the Tasmanian government in Tasmania^[58]
   • prevent the forestry operations and the construction of roads in Tasmanian forests^[59]
   • impose throughout Australia a minimum wage, equal pay, unfair dismissal and parental leave.^[60]
2. ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ to:

• • regulate the trading activities of a corporation even though those activities only occur within one state and even though another power given to the Commonwealth only applies to ‘trade and commerce with other countries, and among the States’^[61]
  • pass the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which was intended to apply to up to 85 per cent of the Australian workforce and fundamentally reshape industrial relations in Australia (it was, however, repealed when there was a change of government).^[62]

Rights protection

Unlike other English-speaking democracies, Australia does not have a constitutional or statutory bill of rights at the federal level. This omission was intentional. With the exception of a few express protections,^[63] Australia’s founding fathers wanted to limit the ability of the courts to interfere with parliamentary decisions on policy issues, such as, for example, the ability to discriminate on the basis of race as reflected in the since abandoned White Australia policy. Further, the omission of a bill of rights can be said not only to reflect a political decision as to where most policy decisions should be made (parliament) but also to provide an indication of what type of rights are likely to be protected (being those favoured by the voting constituents, who were at the time of Federation predominantly white males). In this regard, Galligan and Morton have suggested that:

We would expect the legislative process to favour rights that are of primary concern to the people and mass-based parties, such as voting rights, certain social and economic rights such as welfare entitlements and working conditions and wages, health care provision and education. In contrast, judicial decision making would likely benefit special groups with the knowledge and resources to work the court system to their advantage^[64]

Yet, despite the decision at Federation that the state and Commonwealth parliaments should be primarily responsible for determining the type of rights that were or were not worthy of protection, decisions of the High Court have nevertheless placed some limitations on the choices available.

As discussed above, the High Court’s interpretation of the Constitution has meant that Australian parliaments are unable to pass legislation that takes away the defining and essential characteristics of the courts. Maintaining these ‘characteristics’, such as, for example, the court’s ability to provide natural justice or procedural fairness, not only protects the ongoing existence of the courts but also has a derivative effect in that it helps ensure that when a claim is brought before a court, whether by the executive government against an individual or an individual against the executive, the individual receives a fair hearing (or at least a base level of fairness).

The courts’ role in enforcing the rule of law and, in particular, ensuring that the executive government complies with the law, also saw the High Court at the beginning of this century introduce a new implication, being ‘an entrenched minimum provision of judicial review’ over executive decision making.^[65] It means parliament is unable to pass legislation that prevents the courts from deciding whether the executive has acted within the law.^[66] While the implication helps ensure that the courts continue to operate as part of a system of checks and balances against arbitrary power, it too has the derivative effect of providing a limited form of rights protection. The protection is found in the fact that ordinarily an individual will be able to challenge the legality of any executive government decision that is specifically made about them.

Perhaps most controversially, and in what can be termed the second major period of constitutional transformation after the Engineers case and the cases that immediately followed it,^[67] the High Court has more recently found in the Constitution an implied freedom of political communication^[68] and an implied right to vote.^[69] In effect, the High Court has recognised and enforced a constitutional commitment to certain ‘fundamental freedoms or democratic values’.^[70]

The High Court’s commitment to such values has seen it hold numerous pieces of legislation invalid. It has, for example, held legislation invalid when it: imposed a criminal penalty for publicly criticising the workings of government;^[71] limited political advertising while also establishing a system of free political advertising that favoured the established parties;^[72] prevented prisoners subject to relatively short periods of imprisonment from voting;^[73] reduced the period in which voters could enrol to vote after an election had been called;^[74] and capped political donations and limited electoral campaign spending.^[75]

However, the commitment to freedom of political speech and a right to vote is not without limitations. This is evident in a number of cases where the High Court has chosen not to hold legislation, or the regulations made under legislation, invalid. It did not do so even though political communication or the right to vote was or may have been impeded. It justified these decisions on the basis that in the particular circumstances faced, the legislation was a proportionate or ‘appropriate and adapted’ means of achieving legitimate legislative goals. Such goals have included: protecting the safety of the public;^[76] enabling electoral rolls to be up to date prior to the opening of polling;^[77] providing limitations on the ability of property developers to make political donations;^[78] ensuring political disclosure obligations are not circumvented;^[79] and preventing the publication of recordings or video obtained by entering a property without permission.^[80]

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 patently clear. This is because in applying the ‘appropriate and adapted’ test the High Court judges are openly balancing the policy goals that parliament 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.

First Nations and sovereignty First Nations people have lived in Australia for tens of thousands of years under their own complex customary law and ‘strictly regulated justice’.^[81] Before settlement, this law, and its adjudication and enforcement: played an important role in driving the economy, community wellbeing, welfare, respect, cultural obedience, marriage, ritual, ceremony, moiety system, environmental law, the law of the land and sea, treason, punishment, leadership, management, initiation, sentencing and other cultural obligations.^[82] Yet despite this reality, in 1889 the Privy Council held that upon settlement the Australian continent was ‘practically unoccupied, without settled inhabitants or settled law’,^[83] that legally it was terra nullius. The legal consequence of being terra nullius was that when the Australian continent was settled by the English in 1788, English law was taken to have immediately filled what was seen as a legal vacuum.^[84] Hence, while English occupation was unlawful under First Nations laws,^[85] in Australian courts those First Nations’ laws were deemed not to exist. This stripping of First Nations’ sovereignty has continued to be accepted by Australian Courts, even though First Nations people have never ceded sovereignty.^[86] However, in 1992 the High Court in Mabo v Queensland (No 2) (Mabo (No 2) rejected terra nullius.

Mabo (No 2) concerned a land rights claim by the Meriam people to the Murray Islands in the Torres Strait of Australia.  The High Court’s decision is a quintessential example of the High Court choosing, for policy  reasons, a different path to previous courts but finding that it only has authority to go so far. In relation to change, the High Court rejected the factual proposition that Australia was terra nullius when settled. Indeed, it was somewhat scathingly described as a ‘fiction’ that had previously been ‘justified by a policy which has no place in the contemporary law of’ Australia.^[87] Instead, the High Court acknowledged First Nations peoples’ unique connection to the land of Australia. In turn, this unique connection allowed the High Court to find that First Nations peoples’ land laws and customs survived English settlement as part of the common law of Australia unless subsequently taken away by the lawful actions of government or parliament. However, and perhaps somewhat paradoxically, the High Court was not willing to also consider a challenge to the proposition that, with settlement, sovereignty changed, that is that First Nations sovereignty ended.^[88] Later High Court cases have reaffirmed that, legally, First Nations sovereignty ended with settlement.^[89] Thus the High Court has recognised a clear limitation to its power to facilitate further change for First Nations people.^[90] Rather, change will need to be through public debate and the more ‘political’ institutions, the executive government and parliament.

While demonstrating the limits of judicial interpretation for the advancement of First Nations peoples’ more general interests, from a land rights perspective Mabo (No 2) was nevertheless ground-breaking, giving ‘birth to “native title” as a complex, burgeoning body of Australian law’.^[91] Further, the recognition of First Nations peoples’ unique connection to Australia may in time allow for further beneficial, if somewhat limited and incremental, change. Indeed, this connection has featured in two more recent decisions where the High Court has interpreted sections of the Constitution favorably to First Nations people. In Commonwealth v Yunupingu, the High Court held that native title is like any other property right recognised by the common law. Consequently, if it is taken away by the Commonwealth executive or parliament, First Nations native title holders are entitled to compensation on just terms under section 51(xxxi) of the Constitution.^[92] In Love v Commonwealth,^[93] the Court held that a First Nations person could not be deported. This was because the legislation authorising deportation was made under section 51(xix) of the Constitution, which gives the Commonwealth parliament power to make laws with respect to ‘aliens’. As the common law recognised First Nations peoples’ unique connection to Australia, they could not be aliens even if they were not Australian citizens.^[94]

Conclusions

While the courts’ role in Australia can be simply described as interpreting and applying the law, in reality it is far more complex. It is more complex due 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. As discussed, these repercussions can extend to a change in the balance of power between state and federal governments, the protection of some rights from legislative encroachment and the somewhat limited, but important, recognition of First Nations peoples’ close connection to the land of Australia.

References

About the author

Grant Hooper has two decades of experience as a litigator. He worked at Phillips Fox Lawyers, which evolved and grew to become part of the international law firm DLA Piper. Grant was a partner at DLA Piper when he left to undertake his PhD in administrative law. Grant taught at the University of New South Wales, Macquarie University and Western Sydney University before joining the University of Sydney Law School. His research interests are in administrative law, public law and torts.