#7094 - Separation Of Judicial Power (Federal Courts) - Constitutional Law

[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.

Whether the conferred power is judicial or non-judicial 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!!!

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 non-judicial power.

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

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))

Non-judicial power

Conversely, if the body’s exercise of power involves the creation of new rights and duties, the power exercised is more likely non-judicial.

• Eg making of industrial awards

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

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 decision-maker depends on the consent of parties to the decision, this is likely to be non-judicial power (eg private arbitrator)

If the body has very broad discretion in decision-making, 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 non-judicial 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 non-judicial (Spicer; Ex parte Waterside Workers Federation).

  • 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.

• Discretion to decide if an order is “reasonably necessary” not considered too broad, as judges often consider questions of reasonableness (Thomas).

An indicator of judicial power is the need for a controversy: judicial power is commonly exercised by acting as an impartial umpire in a matter brought to the judge by two parties (Huddart Parker).

Where a body/individual

• intervenes on his/her own initiative

• provides an advisory opinion

this is more likely to be an exercise of non-judicial power.

This is not a conclusive factor.

• Eg: making an order in response to an unopposed application is still an exercise of judicial power (R v Davison), as are decisions regarding administration of trusts and grants of probate.

If courts have considered a certain power as judicial or non-judicial for a long period, this is unlikely to be changed; accordingly, courts will consider historical classifications of power (Thomas v Mowbray).

• Preventative justice ok as has been exercised judicially historically [for example, AVOs, binding over orders] (Thomas)

New types of power not traditionally conferred on courts may be considered non-judicial.

[Conclude which is most likely and why]

[if the power is not what is needed] However, some functions may not be inherently judicial or non-judicial. They may take their character from the tribunal on which they are conferred and way in which they are to be exercised, as Parliament decides. This has been described as the ‘chameleon principle of innominate functions: Kirby J in (Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board).

If the power is judicial, go to step 3; if the power is non-judicial (OR State judicial power), go to step 6.

Only Chapter III courts may exercise federal judicial power (Wheat Case), unless an exception applies. This principle is a necessary structural implication from CC s 72, which guarantees the independence of the judiciary: the effect of s 72 would be undermined if judicial power could be conferred on others without guaranteed independence. Accordingly, since the power being exercised is judicial, whether the body is a Ch III court must be considered – if it is not, the conferral is invalid.

CC s 71 gives an exhaustive definition of Ch III courts; if the body does not fall within those described in s 71, it is not a Ch III court. They include

• HCA

• Such other courts as the Parliament creates.

  • To prove that a body is such a court, it must be shown that

    • all judges of the court have tenure to age 70 per CC s 72 (Alexander)

    • the primary purpose for which the body was set up was to be a court (Boilermakers)

  • Single federal judges are considered to be Ch III courts for the purposes of s 71 (Wilson)

• Such other courts as it invests with federal jurisdiction

  • State Supreme Courts

[Decide if Ch III court]

As [the body] is not a Ch III court, it may only exercise federal judicial power if there is an exception to the Wheat rule.

Delegation

• A Ch III court may delegate a non-essential judicial power to a non-Ch III court. A non-Ch III court will be able to exercise such delegated judicial power if (per Harris v Caladine)

  1. Judges continue to bear the major responsibility for the exercise of judicial power, at least in relation to the more important aspects of contested matters.

  2. The exercise of judicial power by a court officer is subject to review or appeal by a judge or judges on questions of both fact and law.

Discrete exceptions

• Military tribunals can exercise judicial power in punishing members of armed forces for breaching disciplinary rules (R v Bevan; Ex parte Elisa and Gordon).

• Public service disciplinary tribunals can impose punishments for disciplinary offences by Cth public servants (R v White; Ex parte Byrnes)

• Houses of Parliament can order people to be imprisoned for contempt.

[If not a Ch III court and no exception, the conferral of judicial power is invalid; if it is either a Ch III court or it is not but there is an applicable exception, the conferral is valid]

Ch III courts may not exercise non-judicial power (Boilermakers), unless there is an applicable exception. This is implied by the text of the Constitution; in Boilermakers, the exhaustive provisions in Ch III for the creation of a federal judicature and as to its character and judicial powers are incompatible with the exercise by that institution of other powers. The judges in that case also held that the structure of the Constitution, namely its compartmentalisation of the separate arms of government in...