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Separation Of Judicial Power (Federal Courts) Notes

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This is an extract of our Separation Of Judicial Power (Federal Courts) document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Separation of judicial power (federal courts)

1. Does the separation of judicial power limit or invalidate the Cth law?

1. Introduction
[X] will argue that the conferral of [relevant function/power] on [the body/individual]
breaches the separation of judicial powers [describe how this may be]. This separation of powers is implied by


the structure of the CC, in that the three arms of government are separated into three separate chapters and


The text of the constitution (ss 1, 61, 71)

It acts as a limitation to the exercise of Commonwealth power. To decide if the power was conferred validly, both the nature of the power and of the body/individual exercising it must be examined.

2. Is the power judicial or nonjudicial power?
Whether the conferred power is judicial or nonjudicial will be relevant to whether it can be conferred on [relevant body]. There is no clear test to define whether power is judicial or not; however, there are various indicators (most of which are not conclusive) that are taken from case law to guide such inquiry. SEPARATE THE POWERS CONFERRED AND CONSIDER EACH SEPARATELY!!!

i. Enforceability (very significant factor)

If the decisions of a body are enforceable, this is a very strong indicator that the power it is exercising is judicial power (Brandy v HREOC).


If a court acts as a mere 'rubber stamp' for another body's decisions (ie it does not have independent input into the decision), that body's decisions will be seen as enforceable (Brandy).


If a body's decisions are enforced by the courts acting in an independent capacity rather than a mere 'rubber stamp', the first body's decision will not be seen as enforceable (Alinta), pointing towards nonjudicial power. ii.

Binding and conclusive (very significant factor)

If a body's decisions are binding and conclusive (effectively final), this is a very strong indication that the power it is exercising is judicial (Huddart Parker).


A decision will not be binding and conclusive if, on appeal, there is a hearing de novo (all evidence is considered again). This indicates that the first body is exercising non
judicial power


If the appeal decision is restricted to questions of law (a restricted appeal), the first body's decision is binding and conclusive, indicating judicial power iii.

Decisions regarding existing rights and duties

If the body/individual makes decisions regarding existing rights and duties, it is likely that it is exercising judicial power. Judicial power


identification and declaration of new rights

There are some exceptions in which the creation of new rights and duties is an exercise of judicial power. This includes


The making of control orders (Thomas v Mowbray) (historical precedents indicated it was OK)


Removal of special statutory rights created by Parliament (since Parliament as the creator is free to confer power to remove the rights on any body) (eg trade marks (Quinn))

Nonjudicial power Conversely, if the body's exercise of power involves the creation of new rights and duties, the power exercised is more likely nonjudicial.


Eg making of industrial awards


Creating new obligations based on policy factors (deciding whether an agreement contrary to the public interest) (Tasmanian Breweries) iv.

Sovereign power

Power that is sovereign (compulsory and not consensual) is more likely to be judicial power (Huddart Parker).


The power to compel parties to attend court and participate is judicial


Where the decisionmaker depends on the consent of parties to the decision, this is likely to be nonjudicial power (eg private arbitrator) v.

Breadth or nature of discretion to be exercised

If the body has very broad discretion in decisionmaking, it is less likely to be exercising judicial power (Spicer cases).


If decisions are made on a wide range of policy criteria, rather than legal criteria, it is likely nonjudicial power being exercised (Spicer; Ex parte Australian Builders' Labourers' Federation) [since arguably antecedent 'rights' are not involved in the determination]


Discretion that is not sufficiently 'bounded or governed by... ascertainable tests or standards' is likely to be nonjudicial (Spicer; Ex parte Waterside Workers Federation). o

Discretion to consider if a rule is 'tyrannical or oppressive' is considered too broad (Spicer)

However, this factor is not conclusive, given that decisions have upheld the conferral of broad discretionary jurisdiction on courts (Thomas v Mowbray). As pointed out by Gummow and Crennan JJ in Thomas, judges often consider policy in judgments.

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