#6954 - Separation Of Judicial Power Summary - Constitutional Law

RESTRICTION: Separation of Judicial Power

Commonwealth: Separation of Powers

• Doctrine of SoP is implied from the text of the Constitution (s 1,61,72) as well as the divided structure of the constitutions (Ch 1,2,3)

• Not applied strictly in practice (I.e. there is some delegation of legislative power to the executive); the doctrine more rigidly demands the separation of the judiciary from the political arms of government Vic Stevedoring; Boilermakers

Section 71: The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction…

1. Is the power being exercised Judicial Power or Non-Judicial Power

   1. Courts have resisted giving a clear definition of Judicial Power (Griffith CJ, Huddart Parker) so instead a number of factors must be considered:

      • Enforceability(strongest indicator)

        • Is the decision binding and conclusive? If Yes, more likely to be a JP Brandy v Human Rights and Equal Opportunity Commission

          • Judicial power involves the making of a “final and conclusive” decision about “existing rights”

        • Non-judicial decisions are NOT enforceable

          • If the “appeal” is permitted to a court which exercised original jurisdiction then the original body is non-judicial Lutton v Lessels

        • A hearing de-novo (re-trial) IMPLIES Non-judicial.

        • Uncertain whether administrative findings of fact can be final and conclusive Rola Company v Commonwealth

      • Decisions regarding existing rights and duties

        • Creating new rights is considered Non Judicial powers (i.e. making Industrial award in Waterside

        • Identifying and declaring existing rights and obligations arising from past conduct is Judicial Power

        • Not determinative:

          • In Thomas the majority did not deny that issuance of a control order created a new right however they found there were historical precedents for the exercise of power by judges which indicated they were not exclusively non-judicial

      • Breadth or nature of discretion to be exercised

        • Wider the discretion conferred on decision-maker, more likely function is administrative and NJP R v Spicer

          • Permissible considerations of a wide range of policy and political considerations exemplified NJP

        • Narrower the discretion – more likely to be JP

        • Consider: In Thomas v Mowbray despite the discretion conferred to federal judge to issue control orders which were “reasonably necessary” power was JP because it was “necessary for public protection” and majority argued that judge often made decisions according to reasonableness

          • Minority held criteria of “public protection” was too indeterminate and gave too much discretion and therefore was NJP

      • Need for a controversy

        • Courts do not give advisory opinions

        • Controversy must be independently brought to the Decision Maker – they don’t intervene of their own initiative

          • Exceptions: ‘ex-parte’ hearings Davison

      • Historical Considerations

        • Consider if the power has traditionally been exercised by judges

          • i.e. control orders regarding prospective risk were traditionally issued by judges and therefore JP Thomas

      • The label of a ‘court’ or ‘tribunal’ is not conclusive Luton v Lessels

Section 71: The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction…

2. Is the body exercising the power a Chapter III Court

   1. The following Courts will be regarded as Chapter III courts per section 71

      • The High Court of Australia

        • Section 75 lists their original jurisdiction

      • Federal Courts created by parliament:

        • Federal Court

        • Family Court

        • Federal Magistrates Court

        • Industrial Relations Court

      • Courts vested with Federal jurisdiction (under section 77 this is allowed) Note: State cannot vest State jurisdiction in federal courts Wakim

        • State Supreme Courts Kable

        • Magistrates Court Totani

      • A single federal judge Hilton v Well

        • The judge of a federal court is tantamount to being a federal court

   2. If it is not one of the courts above, to determine whether it is Chapter III ask:

      • Does the judge have tenure until 70 years of age? Judges in above courts have tenure Section 72 Waterside Workers

      • Name of the body is not conclusive Waterside Workers

      • Cost of proceeding may be indicative (Federal Court proceedings are very expensive) Waterside Workers

      • The provisions of section 71 are complete and exclusive, and there cannot be a third class of courts which are neither federal courts nor state courts invested with jurisdiction NSW v Cth (Wheat Case)

3. First Principle: Only Chapter III Courts may exercise federal judicial power. Comes directly from Section 71 Wheat Case

   1. If body exercising JP is not a chapter III Court, this first principle will be breached

   2. Exceptions:

      • Delegation: Judicial power may be delegated to non-judicial bodies by Chapter II Courts Harris v Caladine

        • Limitations:

          • Judge must continue to bear major responsibility for the exercise of JP

          • Must not be inconsistent with the obligation of a court to act judicially

          • Decision must be subject to full review of fact and law (hearing de novo) or appeal by a judge of the court on questions of both fact and law

          • Eg: court registrars (Harris v Caladine)

      • Discrete situations:

        • Military tribunals etc may exercise federal JP R v Bevan

        • Public service disciplinary tribunals may exercise federal JP

        • Parliament itself may punish for contempt R v Richards

4. Second Principle: Chapter III Courts may only exercise judicial power (Boilermaker principle)

   1. They may not exercise non-judicial power, or a mixture of judicial and non-judicial powers. It is unconstitutional Boilermakers

   2. Federal courts may not exercise a mixture

   3. Exceptions:

      • Incidental Powers R v Joskey

        • Chapter III courts may exercise NJP which are incidental to the effective exercise of their judicial function

          • Exception comes from Incidental HoP Section 51 (39)

          • There must be a close connection between the NJP and the JP Joske

      • Persona Designata Exception

        • Commonwealth will argue that the judge is validly exercising NJP while acting in their personal capacity as opposed to their official capacity Hilton v Wells

        • Limitation: must apply BOTH the Grollo and Wilson tests as they have not yet been reconciled by the HCA

          • Grollo Test

            1. Judge must consent to the conferral of power

            2. Non Judicial Power must not be incompatible with the judge’s performance of their judicial duties. Consider the following:

               1. How much time is required to perform NJP?

               2. Is the judge’s integrity undermined, does it compromise their ability to perform judicial functions?

                  1. Here the court assumed that a judge would act judicially

                  2. Are they showing racism/sexism/prejudice?

               3. Has public confidence in the judiciary been diminished?

                  1. Are they too close to the executive?

                  2. Are they acting like a prosecutor

          • Wilson Test:

            1. Is the NJP closely connected with the functions of the legislature or the executive? No connection = no constitutional incompatibility.

            2. If the function must be performed in a manner dependent upon the advice of the executive and or legislature, it is incompatible.

               • Are they a “tool of the executive”?

            3. If performed independently, does the function involves the exercise of discretion on political grounds, or is a ‘judicial manner’ of performance required. If political discretion is to be exercised, the function is incompatible with a judge's judicial role.

               • 2 and 3 are very strict, can’t be political in character

               • Judge in this case was not strictly required to act in an independent judicial manner, so it was invalid even though she may of acted in that matter

States: Chapter III and State Courts

• Traditionally there has been no SoJP in State Constitutions. No Doctrine of SoP is described in the State constitutions, and if there was, it could be easily amended. The Commonwealth Constitution does not expressly mention the judicial power of the States – thus there were no limitations on the type of power that could be conferred upon them.

  • Until Kable v DPP it was assumed that there was no restrictions upon the State conferring both NJP and JP on the judiciary

  • In Kable majority affirmed that CHIII of Constitution was binding on all courts vested with Federal Jurisdiction (including State Supreme Courts)

1. Test from Kable/Fardon: States can prima facie vest State courts with NJP.

   • A State can invest a State Court with NJ functions or give its judges duties which would be incompatible with the holding of judicial office in the Commonwealth sphere.

   • However, States cannot vest those courts with powers that would undermine the Institutional Integrity of those courts if those courts were vested with federal jurisdiction.

   • It was essential under Chapter III for public confidence to be maintained in all Courts vested with Federal jurisdiction – this is maintained by ensuring State Courts are independent of other arms of government. Chapter III assumed the continued existence of State courts that act judicially.

2. Identify Issue: State Parliament conferring State courts with impugned powers.

3. Establish that the State court is one vested with federal jurisdiction (i.e. Supreme Court- Kable, Magistrates Court – Totani)

   • The doctrine is that Chapter III prevents the contamination of ALL courts that hold federal jurisdiction from interference.

4. Test: does the conferral of these impugned powers undermine the “Institutional...