Judicial independence plays an important role in sustaining an effective democratic system in Australia. It is the key principle that ensures our nation’s Separation of Powers is controlled and managed.
The judicial arm within the Separation of Powers performs possibly the most important role in our system of government. They act as a supervisor over the legislature and the executive, providing a method of checks and balances to ensure that the Separation of Powers avoids corruption and manipulation. This is also the reason that the judiciary must be independent. An independent judicial arm means that all judges and administration are free from interference from outside sources. This principle is important for obvious reasons. For example, if a judge is under the influence of a Minister of government during a trial, this creates an unfair case and goes against the Rule of Law, as well as infringing the accused’s fundamental human rights. Judicial independence is achieved by upholding four main principles . The first of these is the appointment and dismissal of judges. There must be a clear division between who appoints judges and who dismisses them in order to avoid any group or individual having complete power over the court system. Therefore, judges are appointed by the government but dismissed by vote of the parliament. The second principle is the permanency of a judge’s tenure. Once they are appointed by the Executive Government they have permanency until 70 years of age, when they must retire (65 years in Family Court). This retirement age was a requirement placed on all justices by referendum in 1977 . The fixed remuneration of justices’ salaries is third main principle. This is a constitutional rule that prohibits the l...
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...s a commonly referred example of impartiality and equality in Australian law. This High Court challenge concerned the claiming of native aboriginal lands in Australia. Mabo’s case was successful and the government made complementary legislation the following year, in the form of the Native Title Act 1993. The jurisdiction made by the High Court in this example acted as a trigger for the government to make legislation to improve equality in our laws.
In conclusion, the importance of judicial independence is clearly outlined within the operation of our democracy. An independent judiciary is able to make fair and just decisions, which adheres to the Rule of Law and upholds our basic human rights. Therefore, the judicial arm within the Separation of Powers needs to be free from external interferences in order to preserve the basis of our democratic and free society.
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
Their main vision is to empower the idea of a shared country and encourage opportunities for growth. With the perplexed requirements set out by the Native Title Act, this tribunal has helped claimants by providing legal aid to increase the chances of regaining lost land. For example, the Wik Peoples v Queensland (1996) 187 CLR 1 case was successful in recognising the lost land of the Wik people of Cape York. “They claimed native title over land that had previously been leased by the State Government to farmers for pastoral use” (Woodgate, Black, Biggs & Owens, 2011, p.354). The court then decided by a 4:3 majority that pastoral leases did not necessarily extinguish native title. This means that, in some cases, native title rights will co-exist with the rights of the pastoralists. Therefore, through progression and more native title cases heard, the laws surrounding the Native Title Act will adapt to further assist the Indigenous Australians in reclaiming their land. For instance, the processes surrounding Native Title issues are constantly being refined. As more and more people and political parties become aware of this process, the easier court litigation will become (Dow, 2002)
Throughout the world, in history and in present day, injustice has affected all of us. Whether it is racial, sexist, discriminatory, being left disadvantaged or worse, injustice surrounds us. Australia is a country that has been plagued by injustice since the day our British ancestors first set foot on Australian soil and claimed the land as theirs. We’ve killed off many of the Indigenous Aboriginal people, and also took Aboriginal children away from their families; this is known as the stolen generation. On the day Australia became a federation in 1901, the first Prime Minister of Australia, Edmund Barton, created the White Australia Policy. This only let people of white skin colour migrate to the country. Even though Australia was the first country to let women vote, women didn’t stand in Parliament until 1943 as many of us didn’t support female candidates, this was 40 years after they passed the law in Australian Parliament for women to stand in elections. After the events of World War Two, we have made an effort to make a stop to these issues here in Australia.
Struggles by Aboriginal and Torres Strait islander people for recognition of their rights and interests have been long and arduous (Choo & Hollobach: 2003:5). The ‘watershed’ decision made by the High Court of Australia in 1992 (Mabo v Queensland) paved the way for Indigenous Australians to obtain what was ‘stolen’ from them in 1788 when the British ‘invaded’ (ATSIC:1988). The focus o...
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
The Calder Case was the spark that led to the Canadian government recognizing Aboriginals and their rights. Firstly, the aboriginals used the Calder Case to inform the government that they were taking away their rights. The Calder Case was launched after the Attorney General of British Columbia declared “that the Aboriginal Title, other wise known as the Indian Title, of the Plaintiffs to their ancient tribal territory...has never been lawfully extinguished.”1 The statement made by the government claimed that the Aboriginal Title did not exist in the eyes of the law and before the Calder Case, it allowed them to ignore Aboriginal land rights all over the country. In addition, The Calder brought the issues the Aboriginals were facing with land claims to the attention of the Canadian government. “According to Kainai Board of Education The case made it all the way to the Supreme Court of Canada where the court ended up rejecting the native's claims after being split on it's validity. However, the Supreme Court of Canada's recognition required new respect for Aboriginal land claims.”2 The Supreme Court of Canada's recognition of the Calder Case benefited the Aboriginals as the government was...
In this course we have had a brief but informative insight into the roles of government, and the Supreme Court. The Supreme Court is perceived as one body of the federal government, and it is a powerful one at most times. With of all this power and the decision making, it is normal to wonder if the court is influenced by political views, beliefs or even ideas. It is being questioned in our course if the Supreme Court is influenced by the dominant political ideas of the time and if the courts just follow those ideas and that is the topic I plan to address, but I also wish to address that politics are not the only influence on the Supreme Court and its decisions. I do feel that the court has been influenced because with so many views and beliefs it’s hard not to have an opinion even in such political matters. Although situations in political vary so do the opinions of those in the court, the effect is no different in any given situation. The influences are simply not just political either, but that is where the major opinion lies. I plan to look at not only how politics influence our Supreme Court, but how other matters such as personal opinion and background influence the court’s decisions on political discussions as well.
Rice, S (2011) ‘Reflections on reforming discrimination laws in Australia’, Human Rights law Centre, viewed 4 October 2011, .
In order to secure the rights of everyone, the system of checks and balances is necessary. It is not only for protection from the oppression of society’s rulers but also the injustice of one fraction of society to another. If the governed suspects that the legislative has abused its authority, such as using its powers for personal gains, then by the system of checks and balances, the people are allowed to allocate the legislative into new hands. This is a positive aspect of the constitution because it gives power to the people and not just those in the government. However, not all aspects of the system of checks and balances makes the constitution positive.
Indigenous Australian land rights have sparked controversy between Non Indigenous and Indigenous Australians throughout history. The struggle to determine who the rightful owners of the land are is still largely controversial throughout Australia today. Indigenous Australian land rights however, go deeper than simply owning the land as Aboriginal and Torres Strait Islanders have established an innate spiritual connection making them one with the land. The emphasis of this essay is to determine how Indigenous Australian land rights have impacted Aboriginal and Torres Strait Islander people, highlighting land rights regarding the Mabo v. the State of Queensland case and the importance behind today’s teachers understanding and including Indigenous
Judiciary as the Most Powerful Branch of Government In answering this question I will first paint a picture of the power that the court holds, and decide whether this is governmental power. Then I will outline the balances that the court must maintain in its decision making and therefore the checks on its actions as an institution that governs America. "Scarcely any political question arises that is not resolved sooner or later into a judicial question." (Alexis de Tocqueville Democracy in America) If we take Tocqueville on his word then the American Judiciary truly is in a powerful position.
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group.... ... middle of paper ... ... Carl F. Stychin and Linda Mulcahy, Legal Methods and Systems, (4th edn, Sweet & Maxwell 2010).
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
The judiciary should not only be impartial when dealing with cases but independent too. Whenever cases are being assessed, both impartiality and independence should go hand in hand to avoid