Rule of Law, Judicial System and the High Court

Because one of the fundamental tenets of our system is ‘rule of law’, and no one is above the law, the judicial system plays a large part in Australian public life. Public servants, therefore, should respect the law, understand it, and work within it. In another sense, the bureaucracy plays a major role in the administration of courts and the public justice system.

The constitution established the High Court as a national court of appeal and the arbiter of debate surrounding the interpretation of the constitution. As a consequence, the High Court has played a critical role in altering the way federalism operates in Australia, with some observers believing it has led the inevitable march towards centralism. The High Court has made a number of decisions over the years that have increased the Commonwealth Government’s financial resources and as a consequence its policy influence over the states. For example the 1997 decision that ruled State franchise fees on alcohol, fuel and tobacco were an excise and therefore an exclusive revenue of the Commonwealth.

The High Court is the third leg of the ‘separation of powers’ (the other legs being the Parliament and the Executive) and plays a part in ensuring a responsive and accountable government and is part of the ‘checks and balances’ of our system. The High Court needs to remain independent of government so it can determine and uphold ‘rule’ based on principles rather than heredity, whim or intimidation. In matters of ‘turf’ arguments, the public sector may need to call on the High Court to determine the ‘rights’ of a level of government (e.g. the Commonwealth) to be involved in a matter (e.g. regional planning), or to determine the rights of a citizen against one of the agency’s rulings. Examples of the latter might be in matters of taxation law, where the Court is required to clarify a ruling by the ATO against a citizen or corporation for example, Actor Paul Hogan or immigration law where an individual can appeal if their citizenship interests are not protected, for example, limits to visas.

The 1992 ‘Mabo’ decision recognised that that Native Title existed for all Indigenous people and had not necessarily been extinguished by colonisation while the 1996 ‘Wik’ decision found that it could coexist with other land tenures, such as pastoral leases (AIATSIS, 2022)^[1]. More recently in the 2020 ‘Love’ and ‘Thoms’ cases the High Court ruled that Parliament did not have the power to treat an Aboriginal person as an ‘alien’, given the common law recognition of native title and therefore the Commonwealth could not deport a resident non-citizen Aboriginal.^[2] The previous Coalition government had decided to appeal these decisions as they took the view that it threatens ‘the principle that Aboriginal sovereignty did not survive the colonisation of Australia’ (Karp, 2022)^[3]. However, the new Labor government decided in 2022 to discontinue the appeal.^[4]

Like most organisations, government has a governing board and this is the Cabinet. Much formal decision making occurs in Cabinet and, as a consequence, it is important that you understand the role and conventions which relate to this body.