#7109 - The Separation Of Judicial Power Theory - Constitutional Law

• No real separation of legislative and executive branches: executive can have delegated legislative power, parliament can legislate to control the exercise of executive power

• s 3 of the Transport Workers Act 1928-29 (Cth) authorised the G-G to make regulations with regard to the employment of transport workers, which “notwithstanding anything in any other Act… shall have the force of law”.

  • no discretionary guidelines imposed on the G-G, indicating unfettered discretion to makes laws with respect to the employment of transport workers

  • Act did not set up a legal regime, but merely authorised the making of regulations

  • Expressly authorised the overriding of prior Acts of Parliament

• Challenged on account of its sheer breadth

• DECISION: challenged rejected. No real separation of legislative/exec power.

  • Delegated legislation cannot be inconsistent with the enabling Act (if too broad/not connected to the enabling Act it may be)

  • Parliament may delegate legislative power, but must always retain the ability to divest the executive of its legislated power in all delegated areas (ie not abdicate the power)

  • A delegation of legislative power will fail if it is so broad that it falls outside the legislative power of the Commonwealth (eg by granting an entire legislative HOP to the executive)

‘I am of the opinion that the words ‘judicial power’ as used in s 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’ (Griffith CJ)

• Sovereign power: compulsory not consensual

• Called upon to decide controversies: not pro-active

• Enforcement of legal rights: not discretion or making of new rights

• Binding and authoritative decision

• A power was given to the (former) HREOC to register its decisions under anti-discrimination legislation with the Federal Court. Once registered, the decisions could be enforced as if they were Federal Court judgments.

• The parties could apply to the Federal Court for a review, but the Court would not hear new evidence and would only consider HREOC’s decision (though leave to adduce new evidence could be granted).

• DECISION: arrangement was invalid as it authorised the enforcement of the decisions of a non-judicial body. There was no input from the Federal Court and therefore it was purely the decision of the HREOC that was enforceable.

• Anti-terrorism provisions in the Criminal Code 1995 (Cth) allowed federal judges to issue control orders allowing a number of restrictions on the activities of individuals on application by federal police.

• Before issuing, the court had to be satisfied OBP that

  • the order would “substantially assist in preventing a terrorist attack” or that the target of the order received training from or provided training to a terrorist organisation, and

  • that the requirements of the control order were ‘reasonably necessary’ and proportionate to the ‘purpose of protecting the public from a terrorist act’.

• Counsel for P (Jack Thomas), who was subject to a control order, argued that the division was unconstitutional as it conferred non-judicial power on federal judges. There was no controversy brought, the control orders created new obligations, the criteria were subjective, vague and political and the power restricted P’s liberty for what he might do in future, not in the past.

• DECISION: majority held the power to be judicial. Judges often had to consider matters of ‘reasonableness’ so it was a familiar area and similar to exercises of judicial power in the past. Some members also thought the power would be better held by a court than the executive.

  • Kirby and Hayne JJ dissented, disagreeing that the power was similar to historical exercises of judicial power. They also disagreed the power would be valid in the hands of the exec.

  • Hayne J dissented, saying the requirement was entirely novel and the courts were too reliant on information of Cth intelligence agencies, which could undermine public confidence in the impartiality of the courts.

• S 101 of the CC established an Inter-State Commission and s 103 dictates the terms and conditions of the Commissioners . The Commissioners were supposed to enforce CC s 92. The IC was established in 1912.

• CParl vested the IC with a mixture of judicial and non-judicial powers. Judicial powers included the power to hear and determine complaints, grant injunctions, grant declarations, and to penalise people for disobedience of its orders.

• The IC declared the NSW Govt had violated s 92 by the Wheat Acquisition Act 1914 (NSW) and issued an injunction.

• NSW Govt appealed to the HCA, arguing the IC has not power to issue such an orde as it was only to be done by a court in s 71.

• DECISION: the IC was not permitted to exercise judicial powers (enforcement). HCA held that judicial power can only be conferred by the Commonwealth upon the classes of courts expressly listed in Chapter III of the Constitution.

  • This was implicit in CC s 71, which the majority found to be an exhaustive description of the bodies that could be invested with judicial power. The IC was not the HCA, and it was not an ‘other court’ (which Rich J defined as courts that Commonwealth Parliament finds already in existence ie State courts).

• The HCA held also that the IC was not a ‘federal court’ created by Parliament. This was because CC s 72 required federal judges to have life tenure unless removed for misconduct on an address by both Houses of Parliament. The IC Commissioners only had seven-year terms.

  • Lec thinks IC was meant to be a special exception.

• Commonwealth Court of Conciliation and Arbitration was asked by a trade union to impose a penalty on an employer, Mr Alexander, for breach of an industrial award. The CCCA was a body given both judicial and non-judicial powers. It was given inter alia the power to make an industrial award, a non-judicial power since it creates new rights and obligations in the parties to an industrial dispute. CCCA was also given judicial power to enforce the awards.

• Alexander argued the CCCA was not a federal court and could not exercise judicial powers.

• DECISION: Upheld the Wheat decision. The CCCA was held not to be a Chapter III court since not all of its judges (eg the President) had life tenure. This meant its judicial powers of enforcing awards were invalidly conferred.

• After Alexander, the CCCA was given life tenure and carried out judicial and non-judicial functions.

  • It was able to arbitrate and conciliate disputes, and to make orders and industrial awards. It had judicial powers to impose penalties for, order compliance with, interpret, and issue injunctions in connection with, the awards.

• The Metal Trades Employers’ Association sought to enforce a no-strike clause in an award.

• The Arbitration Court made an order requiring the union to comply with the award. It later also made an order fining the union for contempt of court in disobeying the earlier order.

• The Boilermakers’ society brought proceedings seeking a writ of prohibition on the basis that the order requiring compliance was unconstitutional as it was a non-judicial power.

• DECISION: the HCA (later confirmed by PC) held that courts exercising federal jurisdiction (Ch III courts) may not exercise non-judicial power, unless that exercise is incidental to the exercise of federal jurisdiction (necessary to render the exercise of judicial power effective). This was based on the structure and text of the Constitution.

• Cth cross-vesting scheme sought to allow State courts to exercise federal jurisdiction under s 77 of the CC and also for federal courts to exercise State jurisdiction (as to which the CC is silent). The purpose was to simplify legal proceedings (eg where a federal proceeding happened to involve some aspects of State law, the matter would then not have to be split between State and federal courts).

• DECISION: State courts may exercise federal jurisdiction (per s 77 CC) but federal courts cannot exercise State jurisdiction. Only the judicial power of the Commonwealth (confined to the matters listed in ss 75 and 76 CC) may be vested in federal courts.

  • s 77(iii) specifically empowers the Commonwealth to invest State courts with federal jurisdiction. The absence of the reciprocal power indicates the States lack the power to vest State jurisdiction in federal courts.

  • McHugh J: State power could not be exercised under incidental power since it was not necessary to make the exercise of federal judicial power more effective; the exercise of State power merely renders State power more effective and may in fact divert the time and resources of federal judges elsewhere.

• S 37A of the Family Law Act 1975 (Cth) authorised the delegation of discrete judicial functions by the...