Politics by Other Means - The Courts and the Westminster Model in Australia

• NCJ Number: 72408
• Journal: Journal of Commonwealth and Comparative Politics Volume: 17 Issue: 1 Dated: (1979) Pages: 3-20
• Author(s): J R Mallory
• Date Published: 1979
• Length: 18 pages
• Publication Format: Article
• Language: English
• Country: United Kingdom
• Note: Based on a paper read to the Work-in-Progress Seminar of the Department of Political Science at the Australian National University

Annotation

The courts' jurisdiction in Australia is examined as one which was originally built on England's Westminster model but which has gradually assumed a character of its own.

Abstract

Americans' history of overcoming the inertia of the political system by using the courts to obtain their objectives is contrasted with the Westminster system, which traditionally saw the primary role of adapting the law to social change as securely located in Parliament, with the courts merely interpreting the law. The growing aggressiveness in the Australian system toward asserting the courts' supervisory role over both the legislature and the executive is then chronicled. Australia's early High Court is traced through to its evolution following the Second World War. The constitutional differences between England and Australia that have produced a changed Westminster system in Australia are identified. Kinds of judicial intervention are noted, with attention to the different form such intervention has taken in England's various colonies (in South Africa, Nigeria, Australia). Times when Australia addressed itself to questions of manner and form for the High Court are mentioned, with remarks on a case in 1974 when the Whitlam government attempted to dissolve both houses in order to resolve the deadlock. Events are presented that lead up to the High Court's being able to take jurisdiction to determine if legislation passed at a joint sitting is valid. Further examples of judicial intrusion into the area of the convention of the constitution are explored, together with efforts to improve the efficacy of the High Court by stripping it of unnecessary functions. Final comments look to the questions of whether the growing involvement of the courts in what used to be thought of as political and nonjusticiable questions will freeze the system's capacity to adjust to change through a distortion of the process of democratic parliamentary and responsible government. Fifty-one notes are provided.