Court Power

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Although important to our legal system the Magistrates Court is the lowest in the State court hierarchy. A large number of relatively minor cases are heard there and it does not have appellate jurisdiction, whereas the County and Supreme Court have an appellate jurisdiction. Large civil cases and the most serious criminal, cases are heard in the highest state court, the Supreme Court. The Supreme Court has an extensive original jurisdiction to settle both criminal and civil disputes (Marantelli et al1 1987: 71). This court may also play a part when lower courts do not have jurisdiction to decide a matter or when a defendant appeals a conviction. In effect, a general pattern exists where greater power is apparent when climbing the court hierarchy. The various federal courts of Australia have ultimate power. Under the terms of section 71 of the Commonwealth of Australia Constitution Act 1900 (UK), judicial power of the Commonwealth is placed in the hands of the High Court and any other courts, such as the Family Court of Australia and the Federal Court of Australia, created by a Commonwealth Act of Parliament. The High Court has the power to overrule any decisions made in previous cases in other courts, and even its own decisions, for the purpose of creating new common law.

What does one mean when it is said that courts have too much power? What power are we talking about when there are many powers exercised by the courts? Most courts including the Supreme and High Courts use their powers to make and enforce rules necessary for practice and procedure ((1987) 61 ALJR 762). These powers are to ensure fairness and convenience, for instance by making rules of practice or setting aside orders made in default. Courts also have the right to order a person to comply with certain directions . The exercising of control over parties ensures that the courts are always in command, like that of how the courts can prevent steps being taken that would render judicial proceedings ineffective. The striking out of proceedings which are vexatious or embarassing or dismissing proceedings for want of prosecution or failing to comply with directions are additional powers the courts exercise which prevent abuse of process (Halsbury’s Laws of Australia “Courts” volume). These examples of inherent or implied powers, are put into practice to make and enforce rules of practice, to ensure that the courts process is used fairly by the parties. The ultimate power exercised by the courts, especially the State Supreme and High Court of Australia, is where they have the capability to render laws invalid or unenforceable, amend laws to suit societal needs, or to create totally new laws which have to be exercised by all those courts lower than itself. Even though the High Court cannot change or abolish statute, it has the power to interpret legislation in its own way in order to produce what it believes to be a fair and just decision. The decisions of the Courts create precedent (common law) and it is these decisions, when followed or varied by future court decisions, which are seen to be the ultimate exercise of court power.

The doctrine of precedent means that a question or dispute should be decided in a certain way today because a similar question was so decided yesterday (Derham et al 1971: 103). We must have a general doctrine of precedent otherwise we can have no certainty. There will always be pressure put on the shoulders of those Judges who have to decide to either follow precedent if there is one or to hand down a decision that introduces new common law (i.e. create new precedent). The common law which comes around by creating or altering precedent is usually due to societal changes. No one can seriously imagine that the common law of 500 (or in Australia’s case 200) years ago would have an intelligible answer to many of the legal questions of modern life (Geldart 1966: 10). For example, an executory contract did not have any legal effect years ago, yet now it is enforceable by the law and we can trace back the steps by which it aquired its legal effect (ibid). After an appeal or new matter has been made or referred to the High or Supreme Courts a written judgment is then handed down by the judges which is added to our body of common law. These judgments are based on the current law which has been adapted by previous cases dealing with similar matters. However, these judgments can oppose the current laws governing such a case and with a majority vote the judges can in fact change or alter common law if they feel that it is right. This power of the courts can see decades of legal development suddenly overridden or abolished with the decisions that a panel of judges make. There are many examples where the State Supreme Courts or the High Court of Australia has either taken a ninety degree turn in how it interprets common law (Mabo), or has had a powerful effect by creating new law which has had no precedent (Marion’s Case). The courts should be able to have as much power as they need in order to regulate and update our common law. This judicial power more often than not is the court’s ability to reflect society’s needs and concerns.

The decision handed down in Mabo’s Case did not exactly change or modify any precedent, but rather interpreted the precedent in a much different light than had been seen before in order to seek fairness when addressing the needs and concerns of the land rights of the aboriginal people which previously whites did not fully understand. Briefly the facts were that in 1879 three Murray Islands were annexed to the State of Queensland. In 1912, it was ordered that the islands were to be reserved to accomodate the aboriginal inhabitants of the state. The islands were placed into the control of trustees in 1939 and three inhabitants of the islands put forward a proposal to the Queensland government that the islands were owned and enjoyed by the Meriam people. These people stated that under the Land Act 1962 (Q.) the Crown ‘was not and never had been’ the beneficial owners of such land. The Queensland Government was arguing (against Mabo) that the Crown had beneficial ownership over the Murray Islands and that native title was abolished at the time of colonisation and therefore Queensland could exercise complete power over those islands. It was held in the High Court that sovereignty did not kill native title and that native title existed along side the requests of the beneficial owners, like that of a lease agreement with the beneficial owner of a property ((1992) 175 CLR 3). If there was no native title attached to a piece of land i.e. there were no indigeneous peoples occupying or possessing the land, then the Queensland Government would have complete ownership over that land. All judges except for Dawson J held that “native title to particular land...its incidents and the persons entitled to it are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land” (ibid), and the only way that native title is extinguished is where a tribe at some stage after colonisation has parted their laws and customs from the land or by the death of the last member of that tribe or clan (ibid). So where a clan or tribe can prove their continued existence of laws and customs from the time of settlement, native title exists and the doctrine of terra nullius does not apply. This one aspect of the decision handed down was an example as to how the courts have the power to over rule previous decisions, by where the Queensland Supreme Court did not recognise native title (ibid: 2); the High Court did recognise that native title was a major aspect in Mabo’s argument which they agreed with. Furthermore, the doctrine of terra nullius (land of no-one), which meant uninhabited land was beneficially owned by the Crown at their disposal ((1993) 67 ALJ 442), was overturned to mean that the doctrine of terra nullius was never applicable because of the presence of “civilized” Aboriginal tribes. Earlier cases held that native title did not exist or it was killed off, and pre Mabo the common law expanded the doctrine of terra nullius by allowing it to be applicable even when natives were inhabitants of an island(s) (ibid:443). It was originally said that tribes had no laws or tradition with the land and were nomadic therefore terra nullius applied. The High Court opposed this view by saying that nomadic tribes did have tradition and laws governing their land and that terra nullius did not apply in these circumstances. In addition to this view Brennan J said that the extended doctrine of terra nullius was discriminatory, unjust and denegrated the aboriginal race ((1992) 66 ALJR 408 at 421). The Court saw a completely different aspect to the notion of native title and to the doctrine of terra nullius because it did not totally abolish these notions but rather agreed that they were to be interpreted differently. Terra nullius originally applied in NSW when it was first settled due to the lack of understanding of the aboriginal customs and lifestyles, they were seen as barbaric people with no laws (ibid). The High Court was not saying that the doctrine of terra nullius was wrong, it was simply recognising that a society previously thought to be primitive and barbaric did not, in fact, possess those qualities and therefore those people were civilised natives and they were the owners of the land through native title provided that they could prove that they had continuously occupied the land since settlement. Hence the Crown did not have absolute beneficial ownership and the land was subject to native title. Mabo’s Case shows how courts can easily and instantly alter the common law as evident from the High Court over ruling the earlier decision made in the Queensland Supreme Court, and in other Federal Court Cases such as Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. The precedent in Mabo now has to be followed by all other Australian courts and therefore our entire system of precedent can be seen, by this example, to be affected by the court hierarchy and court decisions.

In Marion’s Case we see the court’s power again at its peak. Marion’s Case is an example of how a court can create common law whereby there is little or no precedent. This decision like Mabo deals with the concerns of society as to what is fair and just. Marion was a fourteen-year-old mentally retarded girl who suffered from severe epilepsy and deafness and [ataxia] loss of coordination and balance caused by a damaged nurvous system (Family Health Guide, 1978) and behavioural problems ([1991-1992] CLR 175 221). After she started menstruating her parents wanted her to have a hysterectomy and ovarienectomy to prevent pregnancy and control hormone fluxes respectively. The court handed down the decision that the guardians have power to consent to the sterilisation of an intellectually disabled child only if the procedure is to protect the physical or mental well being of the child or to alleviate pain, fear or discomfort that is not expected for a child to bear (ibid: 220). In Marion’s Case none of the above were present and thus the court agreed that it was only a decision for the court to make seeing that Section 64(3) of the Family Law Act 1975 (Cth) could be interpreted so broadly in relation to the welfare of the child that only the court has the power to make a lawful decision on behalf of the guardian (ibid: 218), which raises the question of whether the courts are becoming too powerful, over family life. This is backed up by the justices stating that “the decision to sterilise an intelectually disabled minor falls outside the ordinary scope of parental powers and therefore outside the scope of the powers, rights and duties of a guardian (ibid: 219), and that “where sterilisation is not so obviously necessary, the court’s authorisation of the procedure is necessary” (ibid: 220). Surprisingly, the courts did not have the power to enlarge the powers and rights of the parents to enable them to have the authority to approve such a procedure, even with court ratification. The result of this case opens up a whole new perspective as to how much power the courts have over family life and family matters. To disallow the biological parents or legal guardians to have the authority to decide whether their intellectually disabled child should be sterilised is most significant. The parents of this child would have thought long and hard as to the well being of their daughter and made the exhausting decision of having Marion sterilised due to her never being able to understand pregnancy or the art of motherhood; and it is ever so powerful of the court to nullify absolutely the rights of the parents or guardians in permitting such a procedure.

Judges do make law but the courts do not have too much power. Lord Reid totally rejected the notion that all a judge does in developing the common law is to declare it (Green et al 1976: 54) . A decision passed from the High Court is final, not because it is right, but because no one can say that it is wrong ((1972) 12 J.S.P.T.L. 22) ; and that in itself suggests that there is tremendous power associated with the range of decisions that could be handed down to become common law. This exercised power could be said to be over the top and irrelevent in certain cirumstances, but one who thinks along those lines must not have too much faith in our court system or simply does not understand the complexity of court procedure. Their power is necessary to regulate and to give certainty to procedure and precedent. The judiciary has to remain impartial, asses the facts and then decide, applying common sense, legal principle and public policy not forgetting that they must be aware of the general public feeling when deciding on a just decision. The general doctrine of precedent provides certainty but needs interpretation over time as changes occur in common opinion and public policy. This power of the courts to change common law over time was evident in Mabo where white Australia has become educated thus having a better understanding of the Aboriginal culture, traditions and laws. This understanding led to the complete turn around of the application of doctrine terra nullius which today would be considered fair and just. Similarly, in Marion’s Case the courts power enabled an unbiased and impartial decision to be made whilst keeping in mind the effects that could be controversial if the decision was to go the other way. The decision of Marion’s case has enabled the courts to keep under control the possible outcomes that guardians have over the future of their intellectually disabled children. Judges do not feel that they can decide the future of this nation with the drop of a gavel, but rather think of the best possible ways of keeping the public satisfied in relation to their decisions. The judiciary do not use their power in a way to benefit themselves or private parties (such as government parties), but to benefit the public as a whole by punishing the bad, rewarding the good and keeping certain any discrepincies. The courts should have as much power as they need in order to keep procedure and precident certain with the irreversible change in societal needs.

Do Courts Have Too Much Power?

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Courts

Power

Precedent

Mabo's Case

Marion's Case

Conclusion