Hostname: page-component-77c89778f8-vpsfw Total loading time: 0 Render date: 2024-07-19T17:05:11.759Z Has data issue: false hasContentIssue false
  • English
  • Français

Judicial Review and Politics in Australia

Published online by Cambridge University Press:  02 September 2013

M. J. C. Vile
M. J. C. Vile
Affiliation:
University of Exeter
Get access Rights & Permissions [Opens in a new window]

Extract

In a recent issue of this Review John P. Roche developed an explanation of the motivation behind the exercise of self-restraint by the United States judiciary. He related the scope available for the exercise of judicial power to the working of the American party system, i.e., to the extent to which the Court found itself faced by “cohesive majorities.” Almost in passing he drew a comparison between the British and the American position. “No cohesive majority, such as normally exists in Britain,” he said, “would permit a politically irresponsible judiciary to usurp decision-making functions, but, for complex social and institutional reasons, there are few issues in the United States on which cohesive majorities exist.” The purpose of this essay is to test that thesis, and the concept of cohesive majorities, in the setting of Australian politics and judicial review.

Type
Research Article
Information
American Political Science Review , Volume 51 , Issue 2 , June 1957 , pp. 386 - 391
Copyright
Copyright © American Political Science Association 1957

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Roche, J. P., “Judicial Self-Restraint,” this Review, Sept. 1955, pp. 762–72Google Scholar.

2 Ibid., p. 771.

3 Australian National Airways Pty. Ltd. v. The Commonwealth, 71 C.L.R. 29 (1945).

4 Bank of N.S.W. v. The Commonwealth, 76 C.L.R. 1 (1948).

5 Australian Communist Party v. The Commonwealth, 83 C.L.R. 1 (1951).

6 Professor Louise Overacker has summed up the difference between American and Australian parties in this way: “Parties in the United States are extremely soft-shelled mollusks—if, indeed, they have any shell at all. In contrast, Australian parties, and particularly the Australian Labor Party, have developed shells as hard as any mollusks in the political zoo.” The Australian Party System, p. 1.

7 Ibid., p. 314.

8 Parker, R. S., “The People and the Constitution,” chapter VI in the symposium “Federalism in Australia,” Australian Institute of Political Science, 1949, pp. 135–89Google Scholar. Professor Parker presents in an appendix an extremely useful set of tables analysing the results of constitutional referenda.

9 At a single referendum a number of different questions may be put to the electorate.

10 Parker, op. cit., p. 143.

11 The successful 1928 referendum on the Financial Agreement certainly strengthened the Commonwealth but it was presented as a technical matter concerning the assumption of State debts.

12 Parker, op. cit., p. 144.

13 Miller, J. B. D., Australian Government and Politics, p. 134Google Scholar.

14 Parker, op. cit., p. 166–67.

15 Ibid., p. 167.

16 “The Politics of Federalism,” in “Federalism: An Australian Jubilee Study,” ed. Sawer, G., p. 186Google Scholar.

17 See SirMoore, W. Harrison, “The Constitution and its Working,” chapter XVI in the “Cambridge History of the British Empire,” vol. VII, part I, p. 477Google Scholar.

18 Railways Servants' Case, 4 C.L.R. 488 (1906)

19 Commonwealth v. Barger, 6 C.L.R. 41 (1908).

20 Huddart Parker v. Moorehead, 8 C.L.R. 330 (1909).

21 Australian Boot Trade Employees Federation v. Whybrow and Co., 11 C.L.R. 311 (1910).

22 It should be noted that the effects of some of these earlier decisions have been modified by the High Court itself in later judgements.

23 James v. The Commonwealth, 52 C.L.R. 570 (1935).

24 James v. The Commonwealth, 55 C.L.R. 1 (1936); (1936) A.C. 578.

25 To succeed a referendum proposal must receive an affirmative vote by a majority of the electorate voting and a majority of the electors voting in each of a majority of the States. In 1937 the marketing proposal received an overall vote of only 36% of those voting and had not a single majority in any State, whilst the aviation proposal received 54% of the total votes cast and was only defeated because it received majorities in only 2 of the 6 States. See Parker op. cit., p. 174.

26 See Eggleston, F. W., “Reflections of an Australian Liberal,” p. 50Google Scholar.

27 “It is fair to say that in Australia few convincing specific mandates are given at elections on the basis of policy points. In effect what is given is a general mandate to a party ….” Crisp, L. F., “The Parliamentary Government of Australia,” p. 47Google Scholar.

Submit a response

Comments

No Comments have been published for this article.