Law-making role: reflections Reference library
The Oxford Companion to the High Court of Australia
...role: reflections . The central function of the courts is the adjudication of disputes. However, in the common law system, the adjudication of disputes necessarily involves the creation of rules and standards by reference to which disputes are to be resolved. The creation of such rules and standards may be seen as legislative in character, as indeed it is when undertaken by the legislature. When undertaken by the courts, it is seen as an exercise of the courts' law-making role . Courts—more particularly appellate courts and even more so the High...
Law-making role: reflections
The central function of the courts is the adjudication of disputes. However, in the common law system, the adjudication of disputes necessarily involves the creation of rules and standards by ...
Dietrich v The Queen
(1992).In Dietrich, a majority of the High Court (Mason, McHugh, Deane, Toohey and Gaudron; Brennan and Dawson dissenting) held that the lack of legal representation for an accused charged with a ...
Territory Senators Cases
(1975 and 1977).The two Territory Senators Cases—WA v Commonwealth (1975) and Queensland v Commonwealth (1977)—required the High Court to pass judgment not only on the powers of the federal ...
Yerkey v Jones
(1939),decided in the year that Australia entered World War II, epitomises the style of judicial reasoning and social attitudes of the period. The issue was whether Florence Jones was ...
Trident General Insurance v McNiece
(1988)exposed differing attitudes in the Mason Court towards the Court's law-making role. At issue was the doctrine of contract law known as ‘privity of contract’, which treats contract as ...
Garcia v National Australia Bank
(1998).In this case, the High Court was confronted with an anachronistic rule based upon controversial assumptions about the vulnerability of married women.Garcia concerned the circumstances in which ...
Gerard Brennan
(born 22 May 1928; Justice 1981–95; Chief Justice 1995–98).In many respects, Brennan embodied the tension that is at the heart of the judicial oath. He believed that it was ...
Activism
Judicial activism is an expression coined in the US in the 1940s, which has since become a political slogan. Like many slogans, it bears different shades of meaning. In contemporary ...
Policy considerations
‘“Policy”’ has become a hideously inexact word in legal discourse' (Neil MacCormick, Legal Reasoning and Legal Theory (1978). In this respect, ‘policy’ is not unlike ‘values’. Each term is used ...
Role of Court
The principal responsibilities of the High Court are to uphold the Constitution, maintain the rule of law, and act as the nation's final court of appeal in civil and criminal cases.[...]
prospective overruling
A court ‘overrules’ the decision of an earlier court when it decides that a rule laid down in the earlier case should no longer be the law. In general, a ...
Gleeson Court
(22 May 1998–).At the end of 2000, Gleeson remained the most recently appointed Justice. A few months before his appointment, Dawson and Toohey retired and were replaced by Hayne ...
Frank Walters Kitto
(born 30 July 1903; died 15 February 1994; Justice 1950–70)was a Justice with a powerful analytical mind and a reputation for legalism and conservatism. Eldest son of James Kitto ...
Anthony Frank Mason
(born 21 April 1925; Justice 1972–87; Chief Justice 1987–95)was a member of the High Court for 23 years and is regarded by many as one of Australia's greatest judges ...
Mason Court
(6 February 1987 to 20 April 1995).The Mason Court was described by Maurice Byers in 1996 as one of ‘the most gifted and courageous High Courts in our history’. ...
Michael Hudson McHugh
(born 1 November 1935; Justice since 1989)was the product of a strong working-class tradition. His father had felt the bite of the Depression and valued loyalty to his friends ...
Accountability
The High Court is the end of the road for litigants; there is no further appeal to another court. Moreover, its Justices are appointed until retirement age, are not subject ...
Personal relations: a personal reflection
Personal relationships between Justices, depending as they do upon so many diverse factors, vary considerably. Geographical propinquity, age, experience, shared experiences, common legal interests, ...
collective responsibility
A convention applied in the operations of the UK cabinet that decisions on important issues of policy should not be taken by individual ministers in advance of cabinet meetings, and that decisions, ...
