High Court Justices

Abstract

The framers of the Australian Constitution entrenched the principle of separation of powers—specifically security of judicial power and independence—in Chapter 3 of the Australian Constitution (‘The Judicature’). That chapter provides that the judicial power of the Commonwealth is to be vested in the High Court of Australia, which will consist of a Chief Justice and at least two other justices (s 71). In addition to the provisions regarding the Court itself, it also provides for appointment, tenure, and remuneration of justices (s 72).

In exercising the judicial power of the Commonwealth, High Court justices are the pre-eminent legal officers in Australia. Yet the judicial power of the Court, and thereby of the justices, is not simply a legal power. The Court's adoption of judicial review makes the justices' power fundamentally political and it has been more significant in shaping Australian constitutionalism than Referendums under s 128. Judicial review was assumed by the High Court from its establishment in 1903. Based on the US precedent of Marbury v Madison (1803), it allows the High Court to strike down parliamentary enactments or decisions it considers to be contrary to the terms of the Constitution. Judicial review in Australia has been especially powerful because of the limited success of the various attempts to amend the Australian Constitution. Consequently High Court decisions concerning interpretation of the Constitution have become, in effect, definitive, exercising a significant influence on the nature and direction of political developments in Australia. As the High Court is also the final court of appeal for disputes concerning the interpretation of the common law and statutory provisions, High Court decisions can be seen to have major political consequences in Australia.