Introduction
High court in Australia played a significant role in protecting the liberal democratic values and institutions. In this essay, an attempt is made to examine such a role of the high court of Australia. The powers of high court of Australia depended on the constitutional provisions. Within the limitations of constitution of the country, the courts attempted to protect the rights of individuals in the region.
Analysis
Recently, there has been debate among the scholars regarding the real role of the high court while dealing with the questions pertaining to giving protection to the democratic and liberal institutions. Democratic and liberal institutions are the basis of modern democracy. Most of the constitutions of the nations have tried to provide such a protection to the liberal values and democratic institutions. Assuring protection of the individuals who are the part of these institutions in turn protects these democratic and liberal institutions. Thus, the high court of Australia played an important part in the protection of the human rights, and, the rights of minorities and the weak communities. Consequently, the high court in Australia has played proactive role while delivering judgments regarding important cases, which determined the future of the democratic and liberal institutions.
In Australia, there is close relationship between the rule of law and the protection of liberal and democratic values. The judiciary based on the provision of the Australian constitution protects the rule of law. An important feature of the Australian constitution is the separation of powers between legislature, executive, and the judiciary. The high court of Australia in the recent years asserted its right to interpret and implement the law. This has protected the independence of the high court, which can interpret the provisions of the constitution. These provisions in the constitution of Australia have given the powers to the high court of Australia to decide various cases with the view to protect the democratic values. In fact, rule of law can be considered as the basis of institutions of liberal democracy. Rule of law has provided for the independence of the judges, which allows the judges to take their own decisions regarding various cases dealing with liberal values. Another important aspect of rule of law is that all are equal before the law, which means that all individuals in the society have the freedom to approach the court regarding their specific grievances. The judiciary does not consciously make any difference between individuals and groups of people while hearing cases and announcing judgments. The legal aspects have influenced the judgments of the high court of Australia. This implies that the high court does not work according the wish of the political authority but according to the provisions as mentioned in the constitution. Dominance of legalism in the Australian high court implies that the political groups are not able to interfere in the judicial proceedings of the high court[1].
However, there is a debate regarding the validity and significance of legalism among its supporters and critics. Some scholars have supported legalism because it has protected the independence of the Australian judiciary while the critics of this system have argued that legalism does not consider the political expectations of the time and this has restricted the scope of judiciary. The critics have suggested that the high courts need to work based on recent changes in their interpretations of law, which would safeguard the liberal values. The critics argued that the high courts should give more importance to constitutionalism instead of legalism. However, the Australian constitution does not provide for the protection of many fundamental civil rights of individuals as it was thought that the parliament would enact the law to guarantee the protection of these rights. The Australian constitution does not mention and explain the rights of individuals in Australia. For instance, the constitution does not guarantee the right to vote and the right to trial by jury. This can be regarded as one lacuna in the Australian constitution. However, the high court plays an important role in protecting the liberal values and democratic institutions in Australia. Recently, few judges of the Australian high court have realised their role in protecting the liberal values. Judges like Mason have argued that within the Australian constitution there is the provision for the protection of rights of individuals. Mason has interpreted the existing laws by suggesting that the constitution provided for the right to freedom for political discussion.[2] This led to the emergence of the judicial activism in the high court of Australia. Some scholars have suggested some changes to the rules relating to the rights of individuals. It is suggested that the constitution need to protect the various rights such as political rights, civil rights, legal process rights, economic rights, and social rights. [3]
As in other democratic nations like United States of America, in Australia too the high court has utilised its powers given by the constitution to protect the rights of the various groups including the minorities. This has resulted in the debate among the scholars and practitioners of law whether the high court or the judiciary should be allowed the freedom to interpret the law to protect the rights of minority groups. For instance, the high court of Australia allowed the Chinese to follow the one child norm, which is being followed in China. Under the democratic rule when the minority are not given protection by the legislature, they are protected by the rule of law. By providing security to the minority groups, the high court of Australia upheld the liberal values and democratic institutions. This trend can be seen in many other democratic nations of the world. The high court of Australia provided an option to the individuals to approach the high court when they were not able to protect their fundamental rights by the legislature or executive machinery. The judicial activism is also due to the fact that high court of Australia has tried to the support the political and social causes. The high court of Australia assured the right of immigrant population to apply and obtain permission for the permanent citizenship status in Australia. This implied that the high court has been able to create confidence among the immigrant population and the refugees. This has created conflict between the executive and judiciary. Consequently, there has been increase in the number of legal appeals made to the Australian high court. This has led to emergence of judicial activism in the Australian high court. Judges in the Australian high court dealt with controversial cases regarding which there were many debates in the political circles and the press. However, most scholars in the modern context argue that judicial activism is inevitable as it is not possible to find solution for specific cases in the constitution or the laws enacted by the parliament. Judges have made radical interpretations of the constitutional provisions to protect the democratic institutions.[4] This resulted in the protection of human rights of different individuals and groups in Australia. The judicial activism has been supported and criticized by the different scholars. However, we can suggest that this phenomenon has led to the protection of liberal and democratic values of Australia.
This phenomenon of judicial activism is due to the comprehension of the philosophical foundation of the judicial activism. Based on the utilitarian philosophy, the high court has tried to protect the liberal values and democratic institutions. A study made by Haig Patapan made a distinction between utilitarian rights and natural and human rights.[5] Utilitarianism advocated the achievement of highest happiness of maximum number of people. The high court also gave importance to the protection of the natural and human rights and this has changed the character of the high court and the future of liberal democracy in Australia. This assertion of human and natural rights has challenged the earlier importance given to legalism and the authority of the common law of Australia and the authority of the legislature. The judges in the high court have interpreted the provisions of the law, legislations, and the constitution to protect the human and the natural rights of the people of Australia. Traditional scholars believed that the role of the high court should be limited to legalism. This was based on the utilitarian rights. Within the scope and limitations of the constitution, it is possible to achieve the happiness of all the individuals. However, recently there has been revolutionary change in the character of the high court in the sense that great importance is given to protect the human and natural rights.
This has created controversy among the scholars regarding the precise role of the high court of Australia. A few rights mentioned in the Australian constitution has been interpreted liberally by the high court decisions which were geared towards the protection of the individual human and natural rights. After 1988,although the Constitution does not clearly protect the right of political communication, the high court has interpreted the provisions of the Constitution to state that the parliament cannot restrict the right to political discourse and discussion. The high court has attempted to protect the liberal values through its decisions pertaining to Industrial Relations Act 1988 and the amendment to the Broadcasting Act 1942. The human and the natural rights of individuals were protected by the high court through these decisions. In fact, in one case the court declared that the act of parliament was invalid. In 1994 judgment, the court asserted that the members of the community enjoyed the right to political communication. This jurisprudence of rights may lead to positive consequences in the Australian politics because now the political thinkers have began to discuss the need to include few human rights in the Constitution of Australia. The high court has acted as the protector of human and natural rights by safeguarding these rights from the majority political groups. The judicial activism of the high courts has forced the commonwealth to enact legislations to protect the human rights of individuals particularly when the dispute took place at the international level. The decisions of the high court were subjected to review by the international agency of human rights. Thus, we discern significant changes in the attitude of the high court of Australia towards the protection of human rights based on international standards. This is also due to the provisions in the commonweal legislations and the commitment of the government of Australia to safeguard the liberal values and democratic institutions. Judicial scholars such as Anthony Mason have advocated the positive judicial activism in order to protect the rights of individuals and the international community since these rights are not guaranteed in the provisions of the Australian constitution and other legislations. [6]
An important feature of the Australian political and legal system is the separation of powers between legislature, executive, and judiciary. This sometimes created conflict between the different aspects of administration. However, the philosophy behind the creation of separation of powers is to assure the independence of the judiciary so that it is possible for the courts to guarantee the exercise of the human and natural rights of individuals. The recent events such as ‘Kirby incident’ showed the attempt made by the politicians to undermine the power of the judges of the high court of Australia. However, the judges of the high court have reacted strongly and they are able to protect the independence of the judiciary. This incidence demonstrated that due to the principle of the separation of powers between legislature, executive, and judiciary, there have been conflicts between the various institutions of Australia. However, this separation of powers has also protected the independence of high court and the judges without any fear or favor are allowed to take decisions regarding various cases. Of course, many of these judgments have created controversy among the political groups and the press. There has been constant conflict between the government and the judiciary regarding the issue of asylum seekers in Australia.
The government followed the policy of rejecting the applications of these asylum seekers in Australia. In such cases, the judiciary tried to protect the interest of the immigrant population. However, the government enacted legislations to review the judicial process which has been criticized by the judicial thinkers as they argue that this is the attempt of the government to attack the power of the judiciary so that it is possible for the government to impose their policies on the judiciary. Regarding the cases relating to immigrant population, there has been conflict between the judiciary and the government.[7] Through taking interest in protecting the rights of the immigrant population, the high court of Australia played an important role in safeguarding the liberal values and democratic institutions of Australia. Recently, there has been increase in the number of cases related to immigrant population. For instance, the high court announced the judgement in the cases such as Singh and Khawar,[8] which showed the confidence of the immigrant population in the high court of Australia. The fact that in spite of judicial review process, there has been increase in such applications by the immigrant populations indicates the expanding role of the high court of Australia in protecting the liberal values. Another important aspect of the Australian judiciary is that the judges are mostly political appointments.[9] The government in this way tries to influence the decisions of the judges of the court. Other issues such as gender and activism also determine the appointment of judges of high court. In spite of this attempt by the government to determine the decisions of the high court, one can argue that judges of the high court of Australia have been able to give independent judgments. The high court in Australia has tried to protect the interest of the aboriginal population by accepting the fact that there existed native titles in Australia. This implied that the natives could not be denied of their rights in Australia. This compelled the government to implement the Native Titles Act 1993.[10] This implies that the judgments given by the high court of Australia was aimed at protecting the interest of the minority communities, which is the basis of any democratic country. Consequently, there has been increase in the number of applications by the native communities compelling the government to recognise their native titles in the different regions of Australia. The role of the Australian high court has increased because in Australia high court is the highest court of appeal in both civil and criminal matters.[11]
Conclusion
The high court of Australia has played significant role in protecting the liberal values and democratic institutions of Australia in spite of the fact that the legislature and executive machinery has tried to limit the powers of the high court. This is revealed by the survey of various landmark decisions taken by the high court.
Bibliography
Betts, Katherine. (2005). “Judicial Activism, Immigration and the One Child Case”, People and Place, 5:1, (Online), Available from , http://elecpress.monash.edu.au/pnp/index.htm (Accessed on 26-04-2005)
Patapan, Haig. (1996). “Rewriting Australian Liberalism: The High Court’s Jurisprudence of Rights”, Australian Journal of Political Science, 31: 2. 225-242.
Patapan, Haig. (2003). “High Court Review 2002: The Least Dangerous Brach”, Australian Journal of Political Science, 38:2, July. 299-311.
Smyth, Russel. (2003). “Explaining Historical Dissent Rates in the High Court of Australia”, Commonwealth and Comparative Politics, Vol. 41, No. 2, July.
(2005). “Justice and Rule of Law: The Constitution and Protecting Rights”, (Online), Available from www.4.gu.edu.au/ext/civics (Accessed on 26-04-2005)
[1] Russell Smyth, “Explaining Historical Dissent Rates in the High Court of Australia”, Commonwealth and Comparative Politics, Vol. 41, No. 2., July, 2003, p. 85.
[2] “Justice and the Rule of Law: The Constitution and Protecting Rights”, www.4.gu.edu.au/ext/civics (Accessed on 26-04-2005)
[3] Ibid.
[4] Katherine Betts, “Judicial Activism, Immigration and the One Child Case”, People and Place, Vol. 5, No. 1, http://elecpress.monash.edu.au/pnp/index.htm (Accessed on 26-04-2005)
[5] Haig Patapan, “Rewriting Australian Liberalism: The High Court’s Jurisprudence of Rights “, Australian Journal of Political Science, Vol. 31, No. 2., 1996, pp. 225-226.
[6] Ibid, pp. 225-242.
[7] Haig Patapan, “High Court Review 2002: The Least Dangerous Branch”, Australian Journal of Political Science, Vol. 38, No. 2, July, 2003, pp. 299-311.
[8] Ibid, p. 303.
[9] Ibid, pp. 304-305.
[10] Ibid, p. 307.
[11] Ibid, p. 309.
