A federal judge has ruled that the definition of judicial review applied to a Supreme Court decision that struck down a national ban on the import of alcohol.
Key points:Justice William Hayne says the definition has not been amended in the intervening yearsJustice Hayne has said that the decision in question was not a decision on the merits of the appealBut the Federal Court has dismissed the applicationThe decision was upheld by the High Court in a case brought by the NSW and ACT governmentsIn its judgment, Justice Hayne said: “The court is of the view that, notwithstanding the existence of a legislative history of this legislation, it does not constitute a decision of the court.”
The court recognises that this is not an appeal from the judgment, but a decision which was not made by a court.
“The Federal Court rejected the NSW government’s argument that the legislation was a decision to outlaw alcohol, but found that the Supreme Court had made an error in not including it in its analysis.
Justice Haynes said the definition had not been updated in the ensuing years.
He said the Supreme, which had not previously considered whether a prohibition was constitutional, was not required to address the question in its recent decision.
Justice Hayden said that was not the case, noting the Federal Constitution provides for judicial review.”
A decision by the courts of this country does not require the application of a definition of ‘judicial review’,” he said.”
This is not a question of law, but of fact.
“There is a legislative record, and the legislative history is available, and a reference to it in the legislation does not affect the operation of the statute.”
It is a matter of fact, and this is a question about the constitutionality of the legislation.
“He said that in the case of alcohol prohibition, the High Courts had not referred the question to the definition in question, but that in other cases it was referred to the legislative records.