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...
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