Judicial Review (Lecture 6) What is Judicial Review of Legislation ...
Judicial Review (Lecture 6) What is Judicial Review of Legislation? ➢ The power of courts to review legislation and determine whether it is consistent with the constitution, and if it is inconsistent courts can overrule parliament and strike it down or read down the legislation (to make it consistent with the legislation) The Basis for Judicial Review ➢ A political constitutional system vs a legal constitutional system o Political – look to the UK (unwritten constitution, lots of different written documents) ▪ Parliamentary supremacy reigns, democracy and the political branch of government have the last say ▪ Flexible rules, Parliament can change the rules, no constitutional challenges o Legal – look to the US (written constitution and bill of rights) ▪ Law or the courts have the last say, parliament is answerable to the courts and the courts can strike down law ▪ Parliament within strict bounds, the supreme court has much power ➢ Australia at the Commonwealth level o A written constitution, rigid o Judicial review of legislative action only at national level ➢ Australia at state level o A written constitution, flexible (just an Act of Parliament) o Political constitutional system o Judicial review only when invoking commonwealth legislation, not state legislation ➢ ‘There is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it’ (Marbury v Madison) The Role of Judicial Review – Marbury v Madison (1803) ➢ At the founding of the US it was not clear whether the constitution would be flexible and there was a question of how much parliamentary sovereignty would be necessary – this was resolved by the case of Marbury v Madison o Authority for the constitution = the judiciary has the power o The Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution o The immediate effect of the decision was to deny power to the Court, but its long-run effect has been to increase the Court’s power by establishing the rule ‘it is emphatically the province and duty of the judicial department to say what the law is’ ➢ In 1800 the Federalist party lost the election and before the Republican party took over Parliament, the Federalist party appointed many new judges, the supreme
court was shrunk, and the secretary of state was appointed Chief Justice (all political appointments) o This was to make courts as federalist as possible before the republicans assumed office – the Federalist government tried to formalise all appointments before the change of governments ▪ Most were formalised except for four, one of these was Marbury ➢ The Republican party refused to appoint the four judges, including Marbury o Marbury challenged this and took the matter to the Supreme Court to the Chief Justice (a federalist) o The Chief Justice held that the constitution is supreme over anything else, and the constitution had to be upheld regardless of what parliamentary legislation or political branches said ▪ The Judiciary interpreted the constitution to give itself a lot of power ➢ Largely unconstrained power effectively given to the unelected judges o An act of legislature that is inconsistent with the judicial interpretation of the constitution can be deemed void by the judges ➢ Thus, the appointment process is crucial as once judges are appointed to the High Court and provide inadequate reasoning for striking down legislation, it cannot be challenged The Judiciary – The Weakest Branch ➢ The judicial branch is unaccountable democratically, however is subject to appeal ➢ The judiciary controls neither sword not purse (Alexander Hamilton, The Federalist Papers) o The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in capacity to annoy or injure them o It has no direction wither of the strength or the wealth of society, and can take no active resolution whatsoever ▪ Ultimately depend on the executive branch for the efficacy of its judgments ➢ Worcester v Georgia o Georgian legislation in Kansas for the removal of Indians from their land o The Supreme Court declared that legislation unconstitutional o The president said that if the court has made its decision, let them enforce it if they can ▪ An example of the judiciary being the weakest branch – they cannot enforce law with their judgment ➢ Brown v Board of Education o There was racial segregation in schools, the Supreme Court ruled that racial segregation was unconstitutional and that blank children had to be enrolled in ‘white’ schools o Kansas state legislation opposed the Supreme Court and tried to declare that the Supreme Court’s decision was unconstitutional o The President sent in the military to escort black children into ‘white’ schools to ensure the will of the Supreme Court was enforced
➢ Judiciary can strike down legislation and make judgments but cannot do it without the support of another branch of government to enforce its decisions Judicial Review in Australia ➢ The States kept their Constitutions flexible, and created a new Parliament with closely defined powers, and created a High Court to ensure that the higher level of government didn’t stray from the Constitution o Framers recognised that was what they wanted to create o Communist Party case – Fallger J ▪ Marbury v Madison is accepted as axiomatic (self-evident) ➢ The Constitution is framed under the implicit intention for judicial review to exist o s 75(v) ▪ The High Court has original jurisdiction, any member of the public can go straight to the High Court if a government representative or officer of the Commonwealth acts in an excess of the power conferred on them by the Constitution (government has to adhere to the Rule of Law) o s 109 ▪ Assumption that the High Court can police the boundary between State and Commonwealth legislation for inconsistency o S 51 ▪ The powers conferred on Parliament are subject to the Constitution ▪ S 71 • The High Court can be given responsibility for matters arising under the Constitution ➢ Integral to the creation of the nation of Australia – an independent tribunal to make sure that the Constitution was upheld, and civil war was prevented (Australian was warned by the civil war in America) o Upholding the rights and liberties of the states and of the people against the government, and upholding the Constitution generally Current Debates – Federalism ➢ Originalists are against judicial review (a bad thing for federalism) ➢ Strong structural judicial review under the Constitution o At times, the appointment of judges based on their favour of commonwealth rights over state rights (interpret the Constitution to enlarge parliamentary power) ▪ Alvert Pittington – a Justice for the High Court for less than three months in 1913, a controversial appointment and he left the bench because before being appointed the government saw his views about commonwealth vs state rights • This came out publicly – he could not pretend to be impartial • Government has tried to subvert judicial independence to subvert federalism ➢ Nothing in the language of the Australian Constitution would have suggested that the States would become the enfeebled, emasculated creatures they have become o Constitutions are about locking things in
court was shrunk, and the secretary of state was appointed Chief Justice (all political appointments) o This was to make courts as federalist as possible before the republicans assumed office – the Federalist government tried to formalise all appointments before the change of governments ▪ Most were formalised except for four, one of these was Marbury ➢ The Republican party refused to appoint the four judges, including Marbury o Marbury challenged this and took the matter to the Supreme Court to the Chief Justice (a federalist) o The Chief Justice held that the constitution is supreme over anything else, and the constitution had to be upheld regardless of what parliamentary legislation or political branches said ▪ The Judiciary interpreted the constitution to give itself a lot of power ➢ Largely unconstrained power effectively given to the unelected judges o An act of legislature that is inconsistent with the judicial interpretation of the constitution can be deemed void by the judges ➢ Thus, the appointment process is crucial as once judges are appointed to the High Court and provide inadequate reasoning for striking down legislation, it cannot be challenged The Judiciary – The Weakest Branch ➢ The judicial branch is unaccountable democratically, however is subject to appeal ➢ The judiciary controls neither sword not purse (Alexander Hamilton, The Federalist Papers) o The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in capacity to annoy or injure them o It has no direction wither of the strength or the wealth of society, and can take no active resolution whatsoever ▪ Ultimately depend on the executive branch for the efficacy of its judgments ➢ Worcester v Georgia o Georgian legislation in Kansas for the removal of Indians from their land o The Supreme Court declared that legislation unconstitutional o The president said that if the court has made its decision, let them enforce it if they can ▪ An example of the judiciary being the weakest branch – they cannot enforce law with their judgment ➢ Brown v Board of Education o There was racial segregation in schools, the Supreme Court ruled that racial segregation was unconstitutional and that blank children had to be enrolled in ‘white’ schools o Kansas state legislation opposed the Supreme Court and tried to declare that the Supreme Court’s decision was unconstitutional o The President sent in the military to escort black children into ‘white’ schools to ensure the will of the Supreme Court was enforced
➢ Judiciary can strike down legislation and make judgments but cannot do it without the support of another branch of government to enforce its decisions Judicial Review in Australia ➢ The States kept their Constitutions flexible, and created a new Parliament with closely defined powers, and created a High Court to ensure that the higher level of government didn’t stray from the Constitution o Framers recognised that was what they wanted to create o Communist Party case – Fallger J ▪ Marbury v Madison is accepted as axiomatic (self-evident) ➢ The Constitution is framed under the implicit intention for judicial review to exist o s 75(v) ▪ The High Court has original jurisdiction, any member of the public can go straight to the High Court if a government representative or officer of the Commonwealth acts in an excess of the power conferred on them by the Constitution (government has to adhere to the Rule of Law) o s 109 ▪ Assumption that the High Court can police the boundary between State and Commonwealth legislation for inconsistency o S 51 ▪ The powers conferred on Parliament are subject to the Constitution ▪ S 71 • The High Court can be given responsibility for matters arising under the Constitution ➢ Integral to the creation of the nation of Australia – an independent tribunal to make sure that the Constitution was upheld, and civil war was prevented (Australian was warned by the civil war in America) o Upholding the rights and liberties of the states and of the people against the government, and upholding the Constitution generally Current Debates – Federalism ➢ Originalists are against judicial review (a bad thing for federalism) ➢ Strong structural judicial review under the Constitution o At times, the appointment of judges based on their favour of commonwealth rights over state rights (interpret the Constitution to enlarge parliamentary power) ▪ Alvert Pittington – a Justice for the High Court for less than three months in 1913, a controversial appointment and he left the bench because before being appointed the government saw his views about commonwealth vs state rights • This came out publicly – he could not pretend to be impartial • Government has tried to subvert judicial independence to subvert federalism ➢ Nothing in the language of the Australian Constitution would have suggested that the States would become the enfeebled, emasculated creatures they have become o Constitutions are about locking things in
