An interesting retrospective on the High Court in the time of French

December 10, 2010 |

Today’s article in the  Australian, Judges reclaim power from political masters, is a thoughtful piece on the court’s more assertive approach to legislative limits on discretion. At least the first part of the article is.   This court has been much more inclined to not only defend judicial independence by striking down prescriptive legislation but it has also been more receptive to broadening established principles.  That shouldn’t be regarded as notable except that it stands in fairly strong contrast to the Gleeson High Court. A simple for instance is the approach taken to offshore processing.  Previously the court gave it the green light.  In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 while not overturning or even disturbing the process dealt with procedural fairness.  I am not sure that the pre French court would have been so moved to action.

What is distinctive and powerful about the High Court’s decisions this year is that most decisions are overwhelming majorities if not unanimous.  Given the reputed conservativeness of Keiffel and Crennan and cautious black letter approach of Hayne and Gummow this is an approach many commentators would have expected.

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