#7465 - Separation Of Powers - Public Law

Separation of powers

Page 654-660

• Section 51(39) of the constitution introduces that the parliament can set up a court to deal with the laws they enact. But these laws must comply with chapter III courts and can only have judicial powers. E.g. If you put forward marriage laws, a family court is needed to deal with it.

R v Kirby: Ex parte Boilermakers’ society of Australia (Boilermaker’s case) (1956) - The parliament cannot create courts with judicial and non-judicial powers. Shows the separation of powers. The Court of Conciliation and Arbitration had been invalidly constituted since 1926.

Facts:

• The Metal Trades Employer’s Association sought to enforce a non strike clause in an award.

• The Arbitration Court made an order requiring unions to comply with the award. The unions were fined for contempt of court when they disobeyed this order.

• The unions got an order nisi from the High Court. They called upon the judges from the Arbitration Court to show why a writ of prohibition should not be issued.

• The unions argued that judicial power had been vested in a body also exercising non judicial power. This was unconstitutional. They issued awards and decided on the conditions in the awards and then also made orders to enforce them.

  • In Victorian Stevedoring and General Contracting co Pty Ltd and Meakes v Dignan (1931), Dixon found that Parliament cannot used judicial power or give judicial power to tribunals. The commonwealth can only vest judicial power in a court under Chapter III, The Judicature section of the Constitution. Also a chapter III court can only receive judicial power. Judicial and non-judicial power cannot be mixed up in the same tribunal.

Legal issue:

• Can the government create a court that deals with both judicial and non-judicial issues or does this go against the separation of powers?

Outcome:

• The order nisi was made absolute 4:3 in the High Court. The Privy Council later affirmed the decision.

Legal reasoning:

• Dixon, McTiernan, Fullagar and Kitto JJ reasoned that the Arbitration Court can be created using section 51(35) of the Constitution (Settlement of industrial disputes extending beyond state limits). That is there can be arbitration for Industrial disputes beyond the limit of one state. Parliament can give many descriptions to the court. However it cannot constitutionally combine with its dominant purpose, essential functions of judicial power. Chapter III of the Constitution protects the Separation of powers. It does not allow courts to exercise judicial and commonwealth powers. The Constitution is rigid in this respect.

• Chapter III begins with section 71 which says the Commonwealth’s judicial power will be vested in the High Court and other courts that the parliament creates to deal with Federal jurisdiction. However what constitutes judicial power is not stated. Yet it is clear that judicial power must conform to sections 71-80. A court can only be created pursuant to section 71 and in accordance with section 72.

Ratio decidendi:

• Non judicial power cannot be vested in a Chapter III court.

• The parliament cannot create courts with judicial and non-judicial powers.

• The Court of Conciliation and Arbitration had been invalidly constituted since 1926.

• However the validity of the industrial awards under the 1926 legislation of the court has not been challenged. Today the rationale is more about individual rights and the importance of an independent court.

Page 658

Attorney General (Commonwealth) v The Queen (1957) – The Privy Council hears an appeal from the Boilermaker’s case and comes to the same conclusion.

Facts:

• An appeal from the previous High Court decision in the Boilermaker’s case under Lord Simonds.

Outcome:

• Agreed with the High Court decision.

Legal reasoning:

• Lord Simonds reasoned that non judicial and judicial functions in a court goes against the separation of powers. This principle is embodied in the Constitution. Section 51 limits the power of the legislature, making it clear that only chapter III confers judicial power. It would be a mockery of the Constitution to establish a court for non judicial functions.

Result:

• Amendments were made in 1957 to the Conciliation and Arbitration Act. The court was divided into an Arbitration Commission and a Commonwealth Industrial Court.

Page 659

R v Joske; Ex parte Australian Building Construction Employees and Builder’s Labourers’ Federation (1974) – Barwick and Mason suggest that the conclusion of the Boilermaker’s case should be overruled. It is not effective anymore.

Facts:

• The Boilermaker’s case was questioned. The High Court seemed to be inviting that the case should be over-ruled.

Legal reasoning:

• Barwick CJ reasoned that the principal conclusion of the Boilermaker’s case was unnecessary. The decision led to excessive technicality in the operation of the Constitution without compensating benefit. It created an unprofitable convenience. Maybe there should be a departure in its conclusion because it is unsuited to the working of the Constitution.

• Mason J reasoned that the underlying rationale of the Boilermaker’s case had shifted. Its rationale was that the judicial responsibility should be protected. However the structural arguments that were relied on admit no such policy distinction. Chapter III protects judicial power, one of the little expressed or implied guarantees of rights.

Page 660

R v Quinn; Ex parte consolidated Foods Corporation (1977) – This case began the movement away from the Boilermaker’s decision. Judicial and non judicial functions are allowed to be mixed in a tribunal if they are not protecting a basic right.

Facts:

• The shift in emphasis was signalled in this case from decisions being made by courts using only judicial power.

• The court held that the Registrar of Trade Marks can remove a trade mark from the register. This was not seen to involve judicial power.

Legal reasoning:

• Jacobs J reasoned that rights are protected by ensuring a judiciary independent of the executive. The right to have a trade mark is not a right which is a basic right and must be judged by independent judiciary.

Page 662-666

Defining judicial power:

• The Boilermakers case is often circumvented so what constitutes judicial power has not been defined. It is imprecise enough to allow pragmatic flexibility.

Page 663

Huddart, Parker and Co Pty Ltd v Moorehead (1909)

Facts:

• Griffith CJ gives a definition of judicial power. He says that section 71 of the Constitution gives the sovereign authority to decide controversies between subjects or itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power only occurs when a Tribunal has the power to give binding and authoritative decision.

• This imprecise definition allows tribunals whose functions overlap with judicial power to be validly constituted if the grant of power is tailored to the legislative purpose.

Page 663

R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) – Another case that goes against Boilermakers’ case. Tribunals judging public interest questions are not exercising judicial power.

Facts:

• Part IV of the Trade Practices Act 1965 (Cth) gave the Trade Practices Tribunal the power to hear proceedings instituted by the Commissioner of Trade Practices and to make determinations and orders in respect of those hearings. (They could look at an agreement and decide if it is against the public interest. If it is then it is void)

Outcome:

• It was found that the Tribunal did not exercise judicial power. Menzies J dissented.

Legal reasoning:

• Kitto J reasoned that the powers given to the tribunal are non judicial. The public interest is a broad interest and the tribunal is not applying the facts of a case to specifically make a judicial ruling. Judges do not give meaning to questions of public interest and therefore the powers of the tribunal are not judicial.

• Windeyer J reasoned that perhaps the definition of judicial power should remain abstract.

Ratio decidendi:

• The functions of the Trade Practices Tribunal defined by the 1965 Act do not involve judicial power and were validly conferred.

Chu Kheng v Minister of Immigration

• McHugh J reasoned that the line between judicial and non judicial power is blurred. The line between them depends on a value judgment. Historical practice plays an important part.

AR Blackshield, the Law (1981):

• Judicial power is controlled power. It must be exercised based on authoritative legal materials. Reasons must be drawn from existing laws.

• Yet when the courts use words like just and equitable some think it goes beyond judicial power because standards are being applied and subjective evaluation.

• In the Tasmanian Breweries Case it was held that contrary to the public interest was a justifiable standard.

• It is believed that strict legislative guidelines that are so tightly defined as to leave the court no leeway for choice is also incompatible with judicial power. This extreme case would reduce the court to a mere rubber stamp.

• Judges must have room for interpretive judgment but not too much room. How much is the question. What matter is whether the judge applies principles he believes come from existing legal materials.

• Judicial power must somehow be controlled. The judge must be subjectively constrained with the duty to keep faith with the integrity of the law.

• The court cannot act on broad policy considerations unrelated to the case’s facts. A court must wait to decide an issue until a claim is filed. The issue must be decided based on the claim with detachment.

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