Judicial Review : An Intrinsic Necessity

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

Judicial independence is a concept of constitutional law that requires the judiciary o be kept away from all other arms of the government. It requires that the judiciary be free from influence from the other arms of the government and any private individuals. It is vital for the doctrine of separation of powers. Judicial accountability is a principle that brings the concept of keeping the judiciary under scrutiny. It requires that the judiciary and judicial officers be held accountable for their actions while in office (Seibert-Fohr & Muller 2012, p.10). This essay is aimed at discussing these two principles and assess whether the change in the Australian judicial appointments process would enhance judicial independence and judicial accountability with a view of making recommendations where changes are necessary.

Critically assess the applicability of this statement as an analysis of the current approach of the judiciary to statutory interpretation in Australia.

Section 51 (xxix) of the Constitution of Australia grants exclusive power to the Commonwealth to legislate with regard to external affairs. Since its inception, through the development of case law, the external affairs power has been found to consist of three limbs:

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

Having made visits to the Supreme, District and the Local Courts, I was able to obtain a better understanding of the Australian adversarial system. This report will attempt to analyze the distinctions between the different types of courts through primary observations. The report will also assess the models of justice in operation, the triviality of the lower courts compared to the higher courts and assess court procedure in each court.

Australia 's Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.

If the U.S. Supreme Court has the power to declare laws null and void, should this power clearly be stated in the Constitution rather than implied?

The highest court and the final court of appeal in our country is the High Court of Australia, in the ACT. Interpreting and applying the Constitution are their two main roles. They also hear appeals, by special leave, from Federal, State or Territory courts (Hcourt.gov.au, 2010). The High Court has seen its fair share of notorious cases. Al-Kateb v. Godwin is one of the most debated and controversial cases Australia has seen.

It is recognised that Australia’s System of decision making in the court is in need of reform, if the

The unelected positions within the judicial review process carry huge responsibility. Their authority and power over laws and legislation within a state carry huge responsibility that is simply applied by a majority ( judges). Understanding that the effect of their decision create society’s laws, seems limitless when these individuals are not elected into their position.

Teacher, L., 2017. Law Teacher. [Online] Available at: https://www.lawteacher.net/free-law-essays/constitutional-law/distinguishing-features-of-the-australian-legal-system-constitutional-law-essay.php [Accessed 5 May 2018]. TransferWise, 2017.

Judicial review is the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch, most commonly the Supreme Court. It allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution, as they interpret the document. This process is paramount in protecting the validity of the Constitution as well as upholding the laws set forth by it as well. Judicial review is necessary, though it is not clearly defined in the Constitution, to keep either the executive or the legislative branches of government from enacting laws which contradict this sacred document. It also prevents citizens’ rights from being trampled, even if the majority of the people wish it to be otherwise, by reviewing cases brought before it. Judges serve lifetime appointments so that, in theory, they may not be swayed by matters such as public opinion or motive of future political prowess. But make no mistake about it, the Supreme Court itself is highly political. The case for judicial review is best summed up by the arguments of Alexander Hamilton in Federalist No. 78 and by Chief Justice John Marshall in Marbury V. Madison.

The proposed changes to the Australian Constitution are set out in a Bill of Parliament. The Bill must be passed by a complete and