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Part 2 · The judiciary
An unelected branch with no army and no purse, yet the final word on what the Constitution means. The module asks two questions: how the Constitution protects judicial power, and why a court with no force behind it is obeyed. The essay marks sit in the second.
Ideas and cases at a glance
| Authority | In a line |
|---|---|
| Constitution Ch III, s 72 | Federal judicial power vested in courts; tenure to 70, removal only on address of both Houses, remuneration protected |
| Boilermakers | Commonwealth tribunals cannot exercise judicial power |
| Kable; Kirk | State Supreme Courts constitutionally protected; their supervisory jurisdiction entrenched |
| Australian Communist Party v Commonwealth (1951) | Parliament cannot be permitted to be the judge of the extent of its own power |
| Egan v Willis (1998) | Courts decide whether a parliamentary privilege exists; the House judges its exercise |
| Mabo | The acquisition of sovereignty is not justiciable |
| Walker; Owens | Judicial independence, the essential features of courts, and the puzzle of authority without force |
The branch with the last word
Begin with the settled premise. The High Court is the final arbiter of constitutional validity: "in Australia there has simply never been any doubt that a court may determine the constitutional validity of a statute. The principle derived from Marbury v Madison is axiomatic" (Gageler J, quoted in Walker). The deeper justification came in the Communist Party Case: Parliament "could not be permitted to be the judge of the extent of its own power". If the law-maker certified its own compliance with the Constitution, the Constitution would bind no one. Judicial review is therefore not a judicial land-grab but the necessary consequence of a written, binding constitution.
Independence by design
Chapter III vests federal judicial power in the High Court and the other federal courts, and s 72 armours the judges who exercise it. They are appointed by the Governor-General in Council, hold office to age 70, are removable only on an address of both Houses for "proved misbehaviour or incapacity", and their remuneration may not be diminished. These mechanisms "greatly limit the ability of the executive and legislative branches to control or retaliate against judges" (Walker). Each protection answers a specific threat: secure tenure defeats dismissal, the removal procedure defeats political sacking, and protected remuneration defeats the quiet punishment of the pay cut.
The essential features of courts
What makes a body a court is not its label but its features. The case law identifies four (Owens): independence and impartiality; procedural fairness, because "a court cannot be required by statute to adopt a procedure that is unfair" (Pompano); open justice, because "publicity is the authentic hall-mark of judicial procedure" (Russell v Russell); and the duty to give reasons (Wainohu). These features are doing real constitutional work: they mark the line between what can and cannot be asked of a court.
Who may wield judicial power
Two structural rules complete the design. At the Commonwealth level, tribunals cannot exercise judicial power: adjudication that binds must sit in a Chapter III court (Boilermakers). At the State level the protection runs the other way: State Supreme Courts are constitutionally protected institutions (Kable), and their supervisory jurisdiction over inferior courts and tribunals is entrenched (Kirk). Keep the levels straight, because they are examined as a pair and confused as a pair.
Justiciability: where courts will not go
The final word does not mean a word on everything. An issue is justiciable if there are legal standards capable of judicial application and the matter is not constitutionally committed to another branch. The recognised non-justiciable zones are the acquisition of sovereignty (Mabo), each House's conduct of its internal affairs (ss 53 and 54; Osborne), and the exercise, though not the existence, of parliamentary privilege (Egan v Willis). Kirk's account adds five working requirements before a court can act: jurisdiction; capability of judicial resolution; a concrete dispute, the "matter"; standing; and available judicial relief. But the default leans towards review: "Courts will not lightly accept that requirements of the Constitution are not capable of being enforced" absent a relatively clear textual or historical allocation elsewhere. There is no United States style political questions doctrine in Australia.
Existence and exercise
The privilege cases supply the module's sharpest distinction. In Egan v Willis the courts determined whether the Legislative Council's power to order production of State papers existed, because the suspension affected common law rights. But "given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise". Courts police the boundary of the power; the House controls its use.
Authority without force
Now the essay puzzle. The Court "has no police force, no mechanism for raising funds. Yet its authority over matters legal is undisputed" (Walker). Three explanations recur, and a strong essay runs all three. First, legalism as a legitimating technique: the Court presents its work as legal method rather than political choice. Second, depoliticised appointments: judges are appointed by the executive, with the sole statutory consultation duty owed to State Attorneys-General for High Court appointments, and without confirmation battles. Third, a political culture in which "respect for the rule of law remains important". Accountability then runs through appeal, open justice, published reasons and the removal procedure, together with legitimate public criticism, though government attacks on courts strain the convention that the Attorney-General defends the judiciary.
The essay method
Attack plan. Five steps for the legitimacy or justiciability essay. 1. State the puzzle: unelected, unarmed, unfunded, yet final. 2. Ground the authority in Chapter III design and the Communist Party logic. 3. Explain the acceptance: legalism, depoliticised appointments, rule of law culture. 4. Show the self-restraint: justiciability limits, existence versus exercise, the absence of a political questions doctrine as a considered choice. 5. Meet the democratic objection at full strength and conclude with a position.
Worked example
"An unelected court with no army and no budget should not have the final word on the Constitution." Discuss.
A Pass answer says. The High Court interprets the Constitution and can strike down laws, which some say is undemocratic. But judges are protected by s 72 so they can be independent, and the Communist Party Case shows the Court stopping Parliament from exceeding its power. On balance judicial review is a good thing. This is accurate but unstructured: it never states why finality must sit outside Parliament, never engages the justiciability limits, and concludes with preference rather than argument.
An H1 answer says. The prompt's premise is right and its conclusion does not follow. The Court is unelected and unarmed by design: s 72's protections exist precisely so that validity is decided by a body the political branches cannot retaliate against, and the alternative, Parliament judging the extent of its own power, is the one thing a binding constitution cannot tolerate (Communist Party Case). The absence of force is then the puzzle, answered by legalism, depoliticised appointments and a rule of law culture (Walker). Nor is the final word an unlimited word: the Court polices its own boundary through justiciability, declining the acquisition of sovereignty (Mabo), internal parliamentary affairs, and the exercise as opposed to the existence of privilege (Egan). The democratic objection is then met on its own terms: an umpire is not a rival law-maker, and the entrenchment of supervisory review (Kirk) protects the citizen against the State, not the Court against the people. The conclusion takes a position on whether restraint plus independence is a sufficient answer, rather than restating the question.
Critical pitfalls and counter-arguments
- Mixing the levels. Boilermakers is a Commonwealth rule about tribunals and judicial power; Kable and Kirk protect State Supreme Courts. An answer that cites them interchangeably signals confusion.
- Importing the political questions doctrine. Australia rejected the American approach. Non-justiciable zones are specific and narrow, and courts will not lightly find constitutional requirements unenforceable.
- Flattening Egan. The case is not "privilege is non-justiciable". Courts decided the power existed; only its exercise belongs to the House. The distinction is the whole point.
- Misstating removal. Judges are removable only on address of both Houses for proved misbehaviour or incapacity. Getting s 72 wrong in a judicial independence essay is close to fatal.
- Praising without the counter-argument. The strongest objection is democratic: unelected judges, executive appointments, continuing transparency and diversity critiques. An H1 essay states it at full strength before answering it.
Take it to the practice bank
The judiciary is examined as an essay on legitimacy or justiciability, and its doctrines surface inside problem questions across the subject. In the Principles of Public Law practice bank, the cross-topic exam scenarios plant justiciability and privilege points inside larger problems, each with a realistic Pass answer, an H1 model answer and the examiner's comments.
Practice prompts
- Write the justiciability paragraph for a problem in which a House suspends a member for refusing to produce documents: existence in two sentences, exercise in two, and Egan v Willis deployed once with precision.
- Draft the "authority without force" paragraph twice: once as the Court's defender, once as its critic using the appointments and diversity critique. Notice which facts each version must concede.
- Take the worked example and replace the conclusion with the opposite position, argued honestly: that restraint and independence do not fully answer the democratic objection. Keep every authority accurate while the evaluation reverses.
Check your understanding
Auto-marked drills. Answer, then see the authority in the feedback.