The High Court and Ordinary Law Establishing new common law precedents Old School



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The High Court and Ordinary Law
Establishing new common law precedents
Old School
Mabo (1992)
Wik (1996)
Shows creation of new precedent, judicial activism, law making relationship between courts and parliament and parliamentary sovereignty.
Also look at the development of Native title law – Ward (2002) and Blue Mud Bay (2008)
Then look at Dietrich (1992). Implied rights
The High Court and the common law of negligence
Over the past twenty years the High Court decisions have significantly altered the ways the common law of negligence is applied in Australia.
Cases we are familiar with:
Nagle v Rottnest Island Board (1993)
Mulligan v Coffs Harbour City Council (2005)
New and sexy

Harrinton v Stephens Wrongful Life Case



Law making

Parties, pressure Groups, Joe Average and Law making.


PG’s organized associations that attempt to influence public policy, either to change or maintain it.
Joe Average

Individuals can join parties and pressure groups, but they can also act alone to influence political policy. Australian politics provides many examples of the capacity of individuals to influence the legislative agenda. Individuals can also promote causes and become directly involved in the passage of laws as independent members of parliament.

Individuals can also influence the development of common law, law developed through the courts. Courts deal with disputes between individuals. Bringing a case to court can act as a means of highlighting a legal issue, even as a way of predicating change in legal precedent.

Individuals – Cases Roach
Pressure Groups - Case Rowe
See Lawmaking Handout
Elections and Democracy Year 11 & Year 12
Participation and Democracy
Minimum requirement of a democracy is free and fair elections. Democratic society is based on the ability of individuals and groups to influence decision makers.
Elections make governments accountable to the people. How effective they are at this depends on the quality of political rights and the electoral system used.
A fair voting system should:


  • Maximize participation by all citizens

  • Provide equal voting power – one vote, one person, one value

  • Guarantee electoral rights

Fair elections are a significant part of good governance. The first requirement of fair elections is that the government is accountable to all the people . There should be equal voting rights for virtually all adults. The exclusion to vote should only be limited to special cases such as the mentally insane.


Currently there are some restrictions on those that can-not vote. An undemocratic restriction on electoral rights.


  • Permanent Residents can-not vote

  • Not all prisoners can vote. In 2006 The Coalition lead by John Howard legislated to remove the right to vote from all people serving time in prison.

The legislation was challenged in the High Court. Roach 2007. The High Court ruled that the total prohibition of all prisoners being restricted from voting was unconstitutional. But stopped at saying the legislation as a whole was unconstitutional. Prisoners serving three or more years are still unable to vote.



Roach ‘directly chosen by the people’ in ss 7 and 24 of the Constitution These words had been applied by the Gleeson Court in Roach v Electoral Commissioner to strike down a voting ban imposed by the same 2006 statute upon all prisoners serving a sentence of full-time detention.
Rowe is an important decision in the ongoing development by the High Court of the words ‘directly chosen by the people’ in ss 7 and 24 of the Constitution. It establishes that the Constitution has implications for Australian electoral law beyond the question of who may or may not vote. The Constitution applies to a range of other matters, beginning with enrolment.


Integrity of the Electoral Roll
Central to the conduct of a free and fair election is the integrity of the electoral roll. The integrity of the electoral roll must not compromised and all Australians should have confidence in the accuracy of the roll.

The seven day grace period between the issuing of the writs and the closure of the rolls which was abolished by the 2006 changes to the Commonwealth Electoral Act 1918 was effectively reinstated by the order of the High Court issued on 6 August 2010 finding this provision to be unconstitutional.



The decision of the High Court in Rowe v Electoral Commissioner which appears to have constitutionally entrenched the seven day grace period between the issue of the writ and the closure of the rolls that was supported by statute law from 1984-2006, the Commonwealth Electoral Act 1918
The Constitution provides no express guarantee of a universal franchise. The qualification of electors was clearly left for the ultimate decision of the federal Parliament. This may have been because at the time of federation, the colonies had a number of different approaches to voting. Only South Australia and Western Australia recognised the right of women to vote; Aborigines and other racial minorities were explicitly excluded by the law of some colonies;3 those in receipt of government benefits could not vote in some colonies; and some colonies imposed a property, income or education requirement to determine who was eligible to vote.

The most immediately relevant section of the Constitution is s 41, which is cast in the following terms:

* No adult person who has or acquires a right to vote at elections for the more numerous Houses of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
Other sections also of relevance include s 24, requiring that the members of the House of Representatives be chosen directly by the people, and s 30, providing that until the (Commonwealth) Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each state that prescribed by the law of the state as the qualification for electors of the state Parliament.

There seems little doubt that the reason for the inclusion of the s 41 was to protect the existing colonial franchises at the time of federation. Different colonies had different requirements. Only South Australia and Western Australia gave women the right to vote. Tasmania required voters to own a certain amount of property. Some colonies allowed plural voting; others did not. Aboriginal people were excluded from voting in most colonies; and in New South Wales anyone in receipt of state aid or aid from a charitable institution was not entitled to enrol.4 The founding fathers were concerned that the previous arrangements would not be disrupted by the creation of the new federal Parliament.5 Of course, there was a need to gain support for the new Constitution, so an attempt to minimise change to existing arrangements, where possible, was understandable.




Roach v Electoral Commissioner
The plaintiff was an Australian citizen of indigenous descent. She was convicted in 2004 of five offences under the Crimes Act 1958 (Vic) and sentenced to a total of six years effective imprisonment. She was of sound mind and had not committed treason or treachery. This was important because under the relevant provisions of the Commonwealth Electoral Act 1918 (Cth), prior to amendments in 2006, the following were excluded from the right to vote:
(a) those who through unsound mind were incapable of understanding the nature and significance of enrolment and voting;

(b) those serving a sentence of three years or more for an offence against the law of the Commonwealth or State; and

(c) those convicted of treason or treachery.
An amendment in 2006 to (b) above extended its reach to those serving any term of full-time imprisonment. This amendment had the effect of excluding Roach from voting. She challenged the constitutionality of the amendment, and in a 4-2 verdict, the High Court partly upheld her complaint.
Majority Reasoning

Gleeson CJ noted that the founding fathers had left it to Parliament to prescribe the form of our system of representative democracy. Interestingly, he noted that ‘Australia came to have universal adult suffrage as a result of legislative action’, before these comments:


Could Parliament now legislate to remove universal suffrage? If the answer to that question is in the negative (as I believe it to be), then the reason must be in the terms of ss 7 and 24 of the Constitution, which require that the senators and members of the House of Representatives be ‘directly chosen by the people’ of the State or the Commonwealth respectively. In 1901, those words did not mandate universal suffrage8 … the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people.
Gleeson CJ noted that not all people in prison were serving sentences of imprisonment – some 22 per cent were on remand. Many people were in prison for relatively short sentences – he referred to a New South Wales (NSW) report that found 65 per cent of NSW prisoners in the early years of the 21st century had been sentenced to less than six months imprisonment. Many prisoners, due to poverty, homelessness or mental difficulties, did not qualify for non-custodial orders. Though acknowledging the different statutory frameworks and different scope for judicial review, he noted decisions of the Canadian Supreme Court and the European Court of Human Rights that arbitrary denial of the right to vote was invalid. While he would have accepted as valid the legislative provision denying the right to vote to prisoners serving a term of imprisonment of at least three years, he found the amending provisions here were arbitrary, breaking the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people

The joint reasons noted that:


Voting in elections for the Parliament lies at the very heart of the system of government for which the Constitution provides. This central concept is reflected in the detailed provisions for the election of the Parliament of the Commonwealth in what is otherwise a comparatively brief constitutional text …McGinty does not deny the existence of a constitutional bedrock when what is at stake is legislative disqualification of some citizens from exercise of the franchise.
The joint reasons explained that representative government embraced not only the bringing of concerns and grievances to the attention of legislators, but also the presence of a voice in the selection of legislators. In this way, the existence and exercise of the franchise reflected notions of citizenship and membership of the Australian federal body politic,that could not be extinguished by mere imprisonment. A prisoner retained an interest in, and duty to, their society and its governance.
They found that the amendments were invalid, as they did not discriminate in terms of seriousness of offence, and were incompatible with past acceptable restrictions on the universal franchise. They went beyond what was reasonably appropriate and adapted to the maintenance of representative government.
The expression in s 24 requiring Parliament to be chosen ‘directly by the people’ was an expression of generality, not universality. It did not mandate universal suffrage. Denying prisoners voting rights was consistent with the s 24 requirement, and even if universal suffrage were accepted, it allowed for exceptions. As the joint reasons had noted, Hayne J observed that prior to federation there was no consistency of voting rights among the colonies.


GetUp! High Court win overturns Howard's electoral laws

Dan Harrison and Tom Arup , August 6, 2010

The High Court has ruled that Howard-era laws that close the electoral rolls on the day that writs for an election are issued are invalid.

The Australian Electoral Commission will now scramble to contact an estimated 100,000 Australians to inform them they are entitled to vote at the election on August 21.

Activist group GetUp! brought the constitutional challenge, arguing the laws effectively disenfranchised young people who were prevented from registering when the rolls closed on July 19.

About 1.4 million Australians - or about 6 per cent of the population - are not enrolled to vote, with 70 per cent aged between 18 and 39, the commission says.

Before the 2006 changes, people had seven days to enrol to vote or update their details after writs for an election were issued.

The amendment brought the cut-off for new enrolments forward to 8pm on the day writs are issued, and to three days later for those on the roll who need to update their details.

The court did not publish reasons for its decision, saying a majority had declared the changes invalid.



GetUp!'s national director Simon Sheikh called the decision "historic" and said it could make a difference in some marginal seats in the coming poll.

He said that never before in Australia’s history had a case of this magnitude been won in a two-week period.

The decision affects 100,000 people who enrolled after one day and within one week of writs being issued.

GetUp! would not push for the AEC to reopen the electoral roll, Mr Sheikh said.

About 20 lawyers, led by Ron Merkel, QC, worked around the clock on a pro-bono basis.

The High Court has ordered their costs be covered by the Commonwealth.

Success was not a given, but it now had the potential to make a significant impact come polling day, Mr Sheikh said.

"Clearly 100,000 Australians who can now exercise their right to vote is an extraordinarily large number," Mr Sheikh said.

"With marginal seats across the country and an extremely tight election, [this] could have a massive impact on the election."

He accused the Howard government of "political manoeuvres" in amending the electoral laws in 2006.

Mr Sheikh said the legal victory was the first step to getting all eligible voters on the electoral roll.

The opposition’s accountability spokesman Michael Ronaldson defended the 2006 changes as moves to strengthen the integrity of the electoral roll.

It was now open to rort and abuse, he said.

But Special Minister of State Joe Ludwig welcomed the High Court’s decision, saying it restored democratic rights.




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