Although Australia is not a country with strict separation of powers like the United States of America, the principles of separation of powers developed over the 17th and 18th century by English philosopher John Locke, French philosopher Montesquieu and English jurist Sir William Blackstone are present in the Australian constitution. The constitution gives legislative power to the federal parliament, executive power to the Federal Executive Council (Government) and judicial power to the HCA (Constitution ch. I-III). It is widely seen that the “responsible government” in use in Australia results in an overlapping of Legislative and Executive (Hamer p.39). Equally so, as I will discuss in this essay, because of the HCA’s unique judiciary powers, part of the legislative power is held by the judicative. Judiciary review
One way the HCA influences law-making in Australia is through its judicial review of the law-making process of the parliament. This power given to the HCA in the constitution has been used in the past to abolish laws passed by the parliament. In the Communist Party Dissolution Act 1950 (Cth), the Menzies government wanted to outlaw the communist party, but lost the case on appeal. The HCA declared the banning of a political party as not falling within the federal law-making powers given to the federal parliament in s.51 of the constitution. Australian Communist Part v Commonwealth 1951 HCA 5; 83 CLR 1. Deane J has described the judiciary reviewing function as necessary to “determine questions of excess of legislative or executive powers and the power to decide controversies about existing rights and liabilities”. Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580. Changes to the constitution
Changing the constitution is a very complex process involving majorities in both houses as well as a successful referendum with majorities in most of the states and an over-all majority (Constitution s.128). The result of this strict barrier means that over the past 100 years only 8 out of 44 proposed amendments have been successful. (Heilbronn 2008) Even though s.128 provides the only means to change the constitution, the HCA has the power to make judicial pronouncements and interpret the text of the constitution. At times it may be surprising how the words are interpreted, and the HCA’s interpretation has sometimes provided more of an extension of terminology, rather than just an interpretation as seen in R v Brislan; Ex parte Williams 1935 54 CLR 262, and Jones v Commonwealth [No 2] 112 CLR 206,219,222,237. Here s.51(v), “postal, telegraphic and other like services”, was interpreted to include radio and television. Even though it is clear that the makers of the constitution hadn’t given this exclusive power to the federal parliament – radio and television obviously didn’t exist in 1901 – this example illustrates the task of the HCA to adapt a text that is more than 100 years old to a fast-changing world. Vermeesch identifies this as the most important function of the HCA, which he refers to as “the guardian of the constitution”.
Another example in which the HCA has extended federal law-making responsibilities is the Strickland case 1971. The HCA interpreted the federal parliament’s power to make laws concerning “trading and financial corporations” in a way that allowed it to pass laws on a broad span of topics, sometimes related only loosely to the original limiting words of “trading and financial corporations”, and resulting in the Trade Practices Act 1974. The dispute between states and commonwealth pertaining to the laws proposed by the federal parliament during WWII is an example in which the HCA has been seen as favouring the Commonwealth. These laws gave most most tax collecting power to the federal government and deprived the states of the possibilities they had previously enjoyed to collect their own taxes. An area of concurrent law-making, the states complained that the commonwealth was...
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