The separation of judicial power

Separation of judicial power: Commonwealth

Background points

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

Victorian Stevedoring and General Contracting Co v Dignan (1931)

• 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)

Huddart Parker and Co v Moorehead (1909)

‘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

Brandy v Human Rights and Equal Opportunity Commission (1995)

• 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.

Thomas v Mowbray [2006]

• 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.

NSW v Commonwealth (the ‘Wheat Case’) (1915)

• 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...

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