A Comment on Professor Leslie Zines’ Paper ‘Advisory Opinions and Declaratory Judgments at the Suit of Governments’

Abstract

The majority’s decision in In re Judiciary and Navigation Acts proceeded from the major premise that making an ‘authoritative declaration of the law’ is an exercise of judicial power, but that jurisdiction could not be conferred on the High Court to make such a declaration except in a ‘matter’. Professor Leslie Zines’ paper examines a number of issues relating to the conferral of jurisdiction to give advisory opinions, including whether they constitute an exercise of judicial power. Accepting the major premise of the majority’s decision in In re Judiciary and Navigation Acts, he concludes that there are ‘no good reasons based on principle, policy or textual provisions for the decision’. My contention is that In re Judiciary and Navigation Acts was correctly decided, but for the wrong reason. It follows that, although there may be good reasons for conferring jurisdiction on the High Court to give advisory opinions, an advisory opinion jurisdiction cannot validly be conferred on the High Court.