Chief Justice Murray Gleeson

According to the Australian Constitution, the power to make laws vested in the parliament , whilst the power to interpret laws and to judge whether they apply in individual cases, vested in the High Court and other federal courts. In fact, one of the major function of the high court is to interpret the Constitution. For instance, the High Court of Australia may rule a law to be unconstitutional, that is beyond the power of parliament to make, and therefore of no effect. Such a circumstance would be seen by the government as a hindrance.

Hence it is the intention of this essay to discuss why a high court decision on the constitutionality of a statute would be seen by a government as a more serious set back to its legislative reform program than a decision by a judge of a State Supreme Court interpreting the meaning of a key provision in the statute in a manner contrary to the government’s intention. The constitution of Australia establishes the federal government by providing for the parliament, the executive government and the judicature which is known as the doctrine of separation of powers or the three arms of government.

The principle behind the doctrine of separation of powers is that, in order to prevent oppressive government, the three powers of government should held by separate bodies; the legislature, executive and judiciary, which can act as checks and balances on each other. The judiciary is independent of the other two arms of government. Such independence is one of the most crucial safeguards of a country‘s democracy system. The parliament’s function is to enact law. The courts are bound by statute and by decisions made in previous cases.

As courts operate in a hierarchical system, a court is bound by any decision of a higher court. In reference to the appellate structure of the Australian legal system, when the judges made a mistake, the hierarchy of court allows an appeal to a higher court to have an error of law corrected. This also means that the superior courts (High Court) supervise the inferior courts (State Supreme Court). As the Australian High Court has original jurisdiction in all matters which includes interpreting and application of the Australian federal constitution that involves reviews of laws that have been passed by state and federal

parliaments as well as the reviews of government action to determine whether they are constitutionally valid, the decision on the constitutionality of an enacted statute would be final. According to Keyzer, P. , the High Court of Australia which is also the ultimate appellate court was created by the constitution to act as guardian and interpreter of the Australian Constitution. Therefore, the High Court plays a significant role on the issue of constitutionality on statutes.

This statement can be supported by the doctrine of the void ab initio. The doctrine stated that if a statute is deemed to be unconstitutional by the high court, the statute itself is not valid, and therefore it is not legally binding. In addition to that, the assessment on the constitutionality by a court on the governmental measure is not always predictable. On the basis of the best legal advice available to it, a government promote and secure enactment of legislation which it believes to be constitutionally unassailable.

Its legitimate expectation that the legislation will withstand constitutional challenge may, however be defeated when, upon judicial review, the reviewing court adjudges the legislation to be invalid and does so by overruling prior decisions or by discovering, within the constitution, implied limitations on government power not hitherto identified by it. Hence, in such circumstances, in the government’s point of view, the high court’s judgment would interfere with the government’s intention in legislative reform program. In terms for the issue of statutory interpretation, Chief Justice Murray Gleeson stated that:

This function sometimes leads to accusations that individual judges, under the guise of construing a statute, are in truth amending it. He added when such a charge is made, it is an imputation of illegitimacy, and implies not merely error but abuse of power. However, in practice, there are three main methods judges can refer to in order to indemnify themselves against such incrimination. First, the principles according to which disputes about the meaning of statutes are resolved by courts are reasonably well established, and generally accepted.

In many respects, they are reinforced by acts of parliament governing the subject of statutory interpretation. Next, the appeal process results in a fairly large measure of consistency amongst judges in their approach to statutory interpretation and thirdly, when it comes to a situation where the parliament disagree with the way the statute interpreted by the courts, the parliament has it within its jurisdiction to rectify the statute. Chief Justice Murray Gleeson added: It is uncommon for parliaments to respond in this way to a judicial decision which places an unexpected or unintended meaning upon legislation.

The capacity of Parliament to do this serves a useful function in cooling down controversy which might otherwise call into question judicial integrity. Based on the above discussion, it can be clearly seen that a high court decision that a recently enacted statute is unconstitutional would be seen by a government as a more serious set-back to its legislative reform program than a decision by a judge of a State Supreme Court interpreting the meaning of a key provision in the statute in manner contrary to the government’s intentions.