In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) HCA 20
1. The High Court was asked to rule on the validity of Part XII of the Judiciary Act 1903 (Cth), which was inserted in 1910 to give the Court the power to issue advisory opinions – in other words, that gave it the power to issue judgments without a case coming before it.
2. The power to issue advisory opinions refers to the High Court having the power to issue judgments without a case coming before it. The power to hear a ‘matter’ refer to the Court having the power to issue judgments then a case comes before it.
3. The main argument against the validity of the Court’s ‘advisoryopinions’ power in the Judiciary Act was that sections 75 and 76 of the Constitution, whichestablish the jurisdiction of the High Court, both use the word “matter.” For instance,section 75 gives original jurisdiction “In all matters” arising under a treaty, and in whichthe Commonwealth is a party, among others. Section 76 allows the federalparliament to give the Court additional jurisdiction, but only in respect to ‘matters’:“The Parliament may make laws conferring original jurisdiction on the High Court inany matter” concerning interpretation of the Constitution, and concerning maritime jurisdiction, among other things.Victoria argued that the word “matter” should be properly defined as only including situations where a claim between parties was underlitigation.
4. The High Court ruled 5:1 in favour of Victoria and invalidated its own power to issue advisory opinions. The Court held that advisory opinions were part of the judicial function, and that sections 75 and 76 precluded them.
5. Justice Higgins was the dissenting judge. He found that advisory opinions were a valid way of helping the executive perform its role, and gave a list of other courts around the world that were able to give them – for instance, the UK Privy Council and the Canadian Supreme Court. He said an advisory opinion was “not judicial in the sense of settling a specific litigation between parties, but in the sense of pronouncing the law authoritatively.”
6. If the High Court had sided with the dissenting judgment, then the process of setting and changing precedent may have been different in Australia. Advisory opinions are non-binding in the courts around the world that are able to give them. However, they could be considered persuasive.