Parliament and the courts

Parliament

Judiciary

Legislation (statute law)

Judge-made law (common law)

Delegated legislation (statute law)

Constitutional interpretation in judgements

Abrogation—Parliament overrides a court made law (common law)

Statutory interpretation—giving meaning to words in statute laws and providing precedent to the way it will apply in certain cases

Case

Facts

Issue

Verdict

Impact

Victoria v Commonwealth (1926) (Roads Case)

Victoria challenged the ability of the Commonwealth to dictate how states spend money (for example, to build major roads) granted to them using section 96 of the Constitution.

Can the Commonwealth grant money to the states using section 96 on the condition it is spent in an area of state responsibility?

The High Court found the Commonwealth could tell the states how to spend money granted to them, even if it was in an area of state responsibility, such as roads.

This case changed the balance of power between the Commonwealth and the states by allowing the Commonwealth to have a greater say in areas of state responsibility, such as education and health.

Mabo and others v Queensland (No 2) (1992)

In 1982 Eddie Koiki Mabo and 4 others started their legal claim for ownership of the island of Mer in the Torres Strait. The Queensland Government had earlier tried to extinguish the Meriam people’s property rights but the High Court had found this had been unlawful in Mabo v Queensland (No 1).

Did Aboriginal and Torres Strait Islander peoples own their land before the British claimed ownership?

Had Aboriginal and Torres Strait Islander peoples rights to their land been completely abolished when Britain claimed ownership of Australia?

Six of the 7 High Court judges rejected the doctrine of terra nullius, which stated Australia did not belong to any one before Britain claimed ownership. The decision recognised in Australian law that Aboriginal and Torres Strait Islander peoples rights and interests to their land come from their traditional laws and customs. These rights and interests were not abolished when Britain claimed ownership.

In response to this judgement, the Australia Parliament passed the Native Title Act (1993) which attempted to codify the High Court decision and set out a framework for Aboriginal and Torres Strait Islander peoples to seek recognition of their native title rights.

Al-Kateb v Godwin (2004)

Ahmed Al-Kateb—a Palestinian man born in Kuwait—was refused a temporary protection visa after arriving in Australia as a refugee. He could not be deported because no country would accept him. Using the Migration Act 1958, the Australian Government declared Mr Al-Kateb stateless and detained him indefinitely.

Does the Australian Constitution allow for stateless people to be detained indefinitely?

In a majority decision, the High Court upheld the constitutional validity of the Migration Act 1958. The Constitution allowed for the indefinite detention of stateless people.

This judgement confirmed the Australian Parliament’s power to make laws for refugees, including open-ended detention.

Love v Commonwealth; Thoms v Commonwealth (2020)

Immigration law in Australia allows for non-citizens to be deported after being sentenced to imprisonment for 12 months or more. Two Aboriginal men—both born outside of Australia and non-citizens—were to be deported after serving their sentences.

Can an Aboriginal Australians be considered an ‘alien’ in Australia, according to section 51 (xix) (‘aliens’ power) of the Constitution?

The majority of High Court judges—each issuing a separate judgement—found that Aboriginal Australians were not subject to the ‘aliens’ power.

The full impact of this judgement is yet to be tested. However, both Mr Love and Mr Thoms were released from immigration detention and not deported. The judgement limited the Australian Parliament’s powers to make laws using the ‘aliens’ powers and confirmed Aboriginal and Torres Strait Islander people could not be considered ‘alien’ from Australia.