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4. Separation of Power: Judiciary Constitution of Federal Courts (s 71)
The High Court created by High Court of Australia Act 1903 (Cth) The Federal Courts created by Federal Court of Australia Act 1976 (Cth), Family Court Act 1976 (Cth), Federal Magistrate Court Act 1999 (Cth) as amended by the Federal Circuit Court of Australia Amendment Act 2012 (Cth); Under s 39, 39A judiciary Act 1903 (Cth), State Courts have been given federal judicial power Appointment and Removal of HC Judges
1 High Court has 7 justices at present. Appointment
*> s 72(i) of Constitution: Shall be appointed by the Governor-General in Council.
*> Criteria for appointment set out in High Court of Australia Act 1979 (Cth)
- s 6: Before making an appointment, the 'Attorney-General shall ... consult with the Attorney-General of the State'.
* The extent and form of consultation is not specified.
- s 7: The person appointed must be a judge of a federal or State court, or have been enrolled as a legal practitioner in Australia for not less than five years.
* State includes territory. Removal
*> Removal is possible only on the grounds of 'proved misbehaviour or incapacity' (s 72(ii)) or old age.
- s 72(ii): Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.
* Never happened, except the closest one Lionel Murphy.
* However, a failed prosecution against his appointing government (Sankey v Whitlam) and alleged transcripts of telephone conversations proved insufficient to establish a 'proved' misbehaviour.
* This suggests that the evidence would need to be compelling.
* The meaning of 'proved misbehaviour' must rest solely on the Parliament's judgment in any given case.
* The removal is vested exclusively and entirely in the Parliament; and whether or not the grounds exist for its exercise is also a question exclusively for Parliament. Term
*> By referendum in 1977, another seven paragraphs were added to s 72.
- For the High Court, a compulsory retirement age is fixed at 70;
- For other federal courts the maximum is 70, with power for the Parliament to prescribe a lower age. Remuneration
*> s 72(iii): Shall receive such remuneration as the Parliament may fix.
* Quite good, but not as high as private bar.
* Is counteracted with generous superannuation and pension.
In deciding whether there is an abuse of the power to appoint acting judges, considering2
* Such opinions concern matters which are decided by the political branches of government, not by the judiciary.
* The possibility of abuse of the power to appoint permanent judge is just as obvious as the possibility of abuse of the power of appointing acting judges. Appellate Jurisdiction: s 73
The High Court has two jurisdictions conferred upon it by the Constitution: appellate and original.
* Its original jurisdiction allows the Court to hear most constitutional cases.
1 Australian 2
Constitutional Law and Theory, page 539 - 543.
Ibid, page 713, Forge v Australian Securities and Investments Commission (2006)
1 4. Separation of Power: Judiciary
* Its appellate jurisdiction places the Court at the apex of the Australian court hierarchy as the final court of appeal. The scope of both jurisdictions is defined in Chapter III of the Constitution.
*> Special leave required from the High Court to bring an appeal from State Supreme Courts: s 35 judiciary Act 1903 (Cth)
Effect of this jurisdiction - High Court has ultimate power re:
* Determining the common law for the country, as the whole country has the same common law, unlike the US where each State has its own separate and different common law.
* Determining the interpretation of legislation, although Parliamentary sovereignty means that in general terms legislation overrides the common law made by judges.
* Determining the meaning of the Constitution (because Parliament has passed legislation in accordance with s 76) and, taking the principle in Marbury v Madison from the US, also the power to determine whether legislation passed by the Parliaments is consistent with the Constitution. That is, the power of judicial review, to invalidate legislation. Original Jurisdiction of High Court
The range of matters to which this original jurisdiction applies are outlined in ss 75, 76 of the Constitution:
* s 75
- Arising under treaty;
- Affecting consuls or other representative of other countries;
- In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party;
- Between States, or between residents of different States, or between a State and a resident of another State;
- Where a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth
However, s 75(v) is of significant importance in administrative law. It entrenches a 'constitutionally unassailable'1 jurisdiction to issue mandamus, prohibition or injunction against a Commonwealth officer.
* s 76: Conferred by the Parliament by making laws in respect of:
- Arising under Constitution or involving its interpretation;
- Section 76(i) is implemented in the form of s 30(a) of the Judiciary Act 1903 (Cth).
- Arising under any laws made by the Parliament;
- Section 76(ii) grants a broad power to confer original jurisdiction: essentially, any valid legislative instrument may confer power on the High Court to conduct hearings in respect of its enforcement.
- Of Admiralty and maritime jurisdiction;
- Relating to the same subject -matter claimed under the laws of different States.
Qualification of the Original Jurisdiction
Section 77 qualifies the operation of ss 75-76 of the Constitution: With respect to any of the matters mentioned in the last two sections the Parliament may make laws ---
* Defining the jurisdiction of any federal court other than the High Court;
* Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
* Investing any court of a State with federal jurisdiction. Section 77 essentially confers federal Parliamentary power to fully determine the jurisdiction of federal courts and how that jurisdiction interacts with state courts. Importantly, it also confers power to partially determine the jurisdiction of state courts in that it may invest any state court with federal jurisdiction: s 77(iii). Defining Judicial Power
There is no exhaustive definition of judicial power as many of its functions overlap between administrative and judicial powers. 2
4. Separation of Power: Judiciary
While "judicial power" may have a number of indicia (for example, that it is exercised with judicial fairness and detachment), none of these indicia is by itself decisive. Whether a power can be said to be "judicial" depends upon the indicia found in the power being "weighed up" against those which are absent, or against other indicia to the contrary: R v Quinn (1977)3 The main points of judicial power:
* That the decision made by a judge or court is binding: Huddart, Parker & Co Pty Ltd v Moorehead (1909)
* That the decision concerns the identification and declaration of existing rights or obligations, according to existing criteria and with limited discretion, i.e., interpretive: R v Spicer (1957)
* That the decision comes from considering "a matter" arising between parties in an actual dispute: Huddart, Parker & Co Pty Ltd v Moorehead (1909)
* That the decision is enforceable: Brandy v Human Rights and Equal Opportunity Commission (1995); Waterside Workers' Federation of Australia v JW Alexander Ltd (1918)
* That judges act independently: R v Quinn (1977)
* That the decision is punitive: Chu Kheng Lim v Minister for Immigration (1992)
* Can be creating new legal obligations in a variety of circumstances, for example, making an interim control order: Thomas v Mowbray (2007)
* Have to be impartial, see below. A judicial power in general cannot be:
* Merely an advisory opinion that indicates what is a good way to proceed.
* A decision about a hypothetical situation before it has occurred.
* Legislative in that it creates new rights or obligation -- "constitutive": Brandy v Human Rights and Equal Opportunity Commission (1995); Luton v Lessels (2002)
* Based upon loose policy considerations without clear limits.
* A decision that is directed by the legislature / executive, without opportunity for the exercise of independent judgment. Some Indications in Case Law Huddart, Parker & Co Pty Ltd v Moorehead (1909) by Griffith CJ
* The words 'judicial power' as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and 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.
R v Davision (1954)
* Chameleon Doctrine: Some powers if invested in administrative body then it is an administrative power, if invested in federal court then it is a judicial power.
* Some functions are neither exclusively judicial nor exclusively non-judicial.
Relate to the composition of the institution.
R v Trade Practices Tribunal (1970) by Kitto J
* The power must be performed in a judicial manner, that is to say with judicial fairness and detachment.
* Judicial power is a decision settling for the future, as between "defined" person or classes of person (i.e. someone in particular), questions to the existence of a right or obligation, so that exercise of power creates a "new" charter for reference, to which will be used for the "future" (i.e. binding obligation)
What does Judicial Power consist of?4 Judicial power is controlled power based on existing law.
Base on authoritative legal material: rules, principles, conceptions, standard applied must be drawn from existing laws.
However the legal material must leave the judges some room for independent interpretative judgement. BUT what exactly is the standard?
* Standards such as "equity and good cause" applied subjectively by judge
* R v Spicer (1957) was seen as judged by "what one may call an industrial discretion as than to provide legal standard governing a judicial decision".
3 Ibid, page 608.
4 Ibid, page 608, AR Blackshield, "The Law".
3 4. Separation of Power: Judiciary
* Tasmanian Breweries Case (1970) - "contrary to public interest" is not sufficiently justiciable standard as it is more do with "law making (i.e., the legislative or administrative function of government) than to adjudication (judicial power) according to existing law".
* Tightened legislation often leave judges no room for choice. LIMITATION placed on judicial power
* Cannot act upon unrelated facts, must act upon circumstance of case.
* Cannot embark on action on its own initiative but must wait until claim brought to them to decide issue.
* The judicial power must be exercised "with judicial fairness and detachment".
* Judicial independence: R v Quinn (1977)
* Limits on consideration a court is allowed to take int o account e.g. irrelevant matter with no rationale connection to policy legal material but merely of personal expression is not to be brought into the adjudication process: Talga v MBC International Ltd (1976)
* Even when personal predilections do enter into judgment, what sways each judge is not his view of the judgement he should deliver, but his view of the judgment the court should deliver: Brennan J Separation of Federal Judicial Power
5 The Constitution establishes three branches of government, each exercising a different kind of power.The legislative branch exercises legislative power --- the power to create, amend and repeal laws of the Commonwealth.The executive branch exercises executive power
--- the power to administer (execute) and give effect to laws by means of enforcement or application. Executive power usually entails application of legal rules from statutes to particular factual situations, and may occasionally have a legislative element (delegated regulations). Judicial power is a wholly distinct species of governmental authority. A judge interprets and applies laws with greater authority than a member of the executive: their decisions are binding and form precedent. Successive decisions create an authoritative body of case law interpreting and applying the law. Judges can issue remedies and determine punishments.They have power to control the conduct of a proceeding, bring parties before them and determine rights and obligations according to law. The separation of powers doctrine treats these three forms of power as conceptually and institutionally distinct. Although there is some personnel overlap (between, say, members of the executive Cabinet and members of Parliament, and judges and tribunal or commission members), their operation is separated. The justification for this separation is connected with the rule of law. By avoiding concentrations of power (which are prone to arbitrary abuse), different branches act as checks and balances on exercises of power authorised by the Constitution. In a sense, separating governmental powers may be seen to achieve a similar objective to a bill of rights, protecting individual freedoms by ensuring no single member or branch of government has absolute power.
The doctrine's operation is as follows:
* Administrative decisions made by the executive: subject to judicial review (supervised by a separate and, by s 72, independent judicial body, capable of issuing remedies: s 75)
* Executive and legislative power are only weakly separated since the composition of the executive is largely members of the legislature
* Executive regulations are subject to parliamentary review or revocation of the delegated regulatory power
* Parliamentary legislation is subject to nullification by a Court for reason of constitutional invalidity; there is strong separation between the executive and judicature The strict insulation of judicial power was a fundamental principle of the Constitution:Wheat Case (1915)
1. Inter-State Commission Act 1912 (Cth), Pt 5 -"Judicial Powers of the Commission" was listed as:
* Hear and determine complaints and disputes
* Grant remedies including damages and injunctions
2. Under s 101 of the Constitution, there shall be an Interstate Commission and the Commission is to have 'such powers of adjudication and administration as the Parliament deems necessary.' Issue was whether the Act was invalid because it purported to invest the Commission with "judicial power"?
The HC by 4:2 held that the Act was invalid even though s 101 of the Constitution.
Idea of Separation of Power New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 Isaacs J Explanation of Chapter III and Parliament's eligibility
5 Ibid, page 594.
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