JUDICIAL POWER OF THE COMMONWEALTH
The separation of judicial power
· Doctrine: P makes laws, Exec executes law, Judicature interprets/applies law.
· Reflected in the chapter divisions of the Constitution: P (Ch I, s1), Exec (Ch II, s61), Judicature (Ch III, s71).
Section 71
“The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, not less than two, as the Parliament prescribes.”
· The purpose of the separation of powers: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 10-11,
o The functions of government are not separated because the powers of one branch could not be exercised effectively by the repository of the powers of another brand. To the contrary, the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed.
o Advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of CH III judges à Judicial independence
Only Chapter III Courts can exercise Chapter III power
· New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54: Interstate Commission set up law using s101 to adjudicate disputes in interstate trade/commerce and grand remedies eg. injunction
o Challenged that Commission’s powers to “adjudication” under s101, did not extend to exercising Ch III powers (injunction). Can only vest that within Ch III court.
o Majority of HC agreed – thus law invalid.
Chapter III Courts cannot exercise non-Chapter III power
· Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia) (1956) 94 CLR 254: Commonwealth Court of Conciliation and Arbitration with power to conciliate and arbitrate industrial “awards”, and judicial power to enforce awards/punish breach. Boilermakers fined.
o B challenged that CCCA does not have BOTH judicial and arbitral power.
o HC/PC: structure of court unconstitutional
Exceptions/Qualifications To Rule of Separation of powers
· Courts Martial – incidental to exercise of power of Executive under Con to maintain discipline in armed forces: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; Re Tracey; Ex parte Ryan (1989) 166 CLR 518
· Contempt of Parliament – both Houses of Fed P may commit people for contempt of P as part of powers, privileges and immunities they have under s49 of Con; R v Richards; Ex parte Fitzpatrick & Browne (1954) 92 CLR 157; Re Colina; Ex parte Torney (1999) 200 CLR 386
Functions incidental to the exercise of judicial power
· Constitution allows Ch II courts to exercise judicial power “auxiliary or incidental thereto”
· s 51(xxxix) – Parliament power to make laws with respect to matters incidental to the exercise of power by other branches of government (eg. the judicature)
· Solomons v District Court of New South Wales (2002) 211 CLR 119: s51(xxxix) and s71 (or 77) can authorise law conferring jurisdiction to engage in activities necessary or convenient for effective exercise of that jurisdiction.
· Some types of judicial power can be delegated to non-judicial officers.
· Harris v Caladine (1991) 172 CLR 84: provisions of Family Law Act 1975 (Cth) empower Family Court judges to make rules of court enabling registrars and non-judicial officers to exercise powers of court. Deputy registrar made order by consent of parties about settlement of property dispute.
o Challenged as this allowed person without judicial tenure of s72 to exercise judicial power.
o Rejected by majority of court.
o Many functions committed to Ch II courts are administrative in nature. Unnecessary for every function to be exercised by Ch III judge.
o Delegation is permissible if:
· Delegation is not to extent where it can no longer properly be said that judges constitute the court – ie, judge must bear major responsibility in relation of important aspects of contested matter.
· Delegation is not inconsistent with obligation of court to at judicially and decisions by non-judges must be subject to review/appeal by judges.
· Luton v Lessels [2002] HCA 13: Callinan J – some delegation of judicial power does not necessarily contravene Ch III.
Persona Designata
· Ch III judge may be appointed to undertake Ch II (executive) tasks/roles.
· This is NOT Ch III judge exercising non-Ch III power. It is appointee exercising Ch II in their capacity as a member of Exec branch.
· Confirmed Hilton v Wells (1985) 157 CLR 57: Fed telecommunications law prohibit interception of communications, unless with warrant issued by “a judge of the Fed Court of Australia”. H charged with evidence via phone taps.
o Provision empowering Fed Court judge to issue warrant à infringe SOP?
o Maj recognised existence of this exception. Whether such conferral of power/appointment à depend upon construction of statute making that conferral.
o Held: “a judge” referred to designated judges in their personal capacity. Also power was admin and was not vested in the judge in their judicial capacity.
o Power was not INCOMPATIBLE with judicial office (independence and impartiality).
o Mason, Deane JJ (dissent): rule would undermine the Boilermakers doctrine.
Incompatibility Condition
· Grollo v Palmer (1995) 184 CLR 348: same facts as Hilton. Argued that PD was bad law and contrary to Boilermakers. Adopted the following test:
o 1) no non-judicial function that is not incidental to judicial function can be conferred without judge’s consent
o 2) no function can be conferred that is incompatible either with judge’s performance of his/her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. (INCOMPATIBILITY).
o Held: Judges are eminently suited to task of issuing warrants and it is NOT incompatible.
· Wilson v Minister for Aboriginal & Torres Strait Islanders Affairs (1996) 189 CLR 1: Fed Minister appointed Fed Court judge to conduct public inquiry and prepare report about Fed Aboriginal heritage protection legislation. Minster to consider and decide whether report to be implemented.
o Quoted from Mistretta v United States that: legitimacy of Judicial Branch ultimately depends upon its reputation for impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.
o Maj held: appointment was incompatible. Left ultimate discretionary power to make a decision in the Minister rather than the PD.
· Kable v DPP (1995) 189 CLR 51: certain functions in judges/courts are so INCOMPATIBLE with judicial power that it causes the public to think less of the competency of the judiciary.
Judicial Tenure, remuneration and independence
Judicial Tenure:
Section 72 - The Justices of the High Court and of the other courts created by the Parliament-
(i) Shall be appointed by the Governor-General in Council:
(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:
(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age...
· Purpose of judical tenure is to support judicial independence by insulating judiciary from political pressure: Harris v Caladine (1991) 172 CLR 84 at 159.
· Judicial tenure is an ESSENTIAL feature of Ch III courts: Waterside Workers Federation of Australia v JW Alexander Ltd.
o CCCA issued summons saying JWA breach industrial award.
o Challenged that CCCA could not exercise both judicial AND arbital power. Also that CCCA was NOT a Ch III court because president of court did not have judicial tenure.
o Unanimous court: agreed that tenure was essential feature.
· Does not apply to Territory courts (powered by s122 which is outside Ch III): Spratt v Hermes (1965) 114 CLR 226.
o Stipendiary magistrate appointed without s72 tenure under ACT ordinance authorised by s122. Mag determined matter under Fed postal law and authority challenged. Did not have s72 tenure à cannot exercise judicial power?
o Barwick CJ: s72 is not of universal application à only Federal courts. s122 is plenary – creating Territory courts which are NOT Fed courts within meaning of s71.
· Applied in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322: Eastman convicted in ACT by Supreme Court judge appointed for a short time on an “acting” basis. Argued that appointment contravened s72.
· Despite above, recently argued - Territory cannot appoint a judge, putatively until a statutory retirement age, but then only guarantee that judge a salary for a shorter period: NAALAS v Bradley
o Place judge capable of exercising Fed jurisdiction in weakened position.
Remuneration:
· Remuneration amounts are set by independent tribunal, public, and done by “open determination” from time to time – set for an indefinite amount of time.
· Austin v The Commonwealth [2003] HCA 3: Fed law imposed Fed tax on State judges’ superannuation. Invalidated by Melbourne Doctrine.
o Gaudron, Gummow, Hayne JJ: secure judicial remuneration…encourage persons learned in the law…”to quit the lucrative pursuits of private business, for the duties of that important station”.
Judicial power of the Commonwealth
How should ‘judicial power’ be defined?
· There is no single superior approach to questions of constitutional interpretation
· SGH Limited v Commissioner of Taxation (2002) 210 CLR 51: cannot be answered by “adoption or application of any particular, all-embracing and revelatory theory or doctrine of interpretation”.
· Various approaches:
o Historical – historical/traditional understanding of the power
o Analytical – essential characteristics of judicial decisions distinguished from other types
o Functional – whether relevant powers have been/can be vested in court.
Judicial power at 1900: historical approach
· Connotation at the time of Federation: A-G for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469
· R v Davison (1954) 90 CLR 353: Fed deputy registrar of bankruptcy issued sequestrian order upon petition by D. Argued that sequestrian order involved exercise of judicial power (taking possession of debtor’s property, affected status of bankrupt etc).
o Majority agreed using historical approach: “In doubtful cases…we employe a historical criterion. We ask whether, at the time our constitutions were adopted, the power in question was exercised by the Crown, by Parliament or by the judges” at 369.
o Kitto J: “when…requiring a distinction to be maintained between powers…it is using terms which refer, not to fundamental differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different “skills and professional habits” in the authorities” at 381.
o Held: power to make sequestrian order à established branch of judicial activity.
Some powers historically regarded to be judicial may now be vested in non-judicial tribunals
· Eg. R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1: Fed Registrar of Trade Marks vested with power to remove trade marks from register if application of a “person aggrieved”. Challenged that this was exercise of judicial power.
· Jacobs J: “If the legislation requires the exercise of a power to determine questions the determination of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have on legal rights rather than from the history of similar legislation reposing the function in a judicial tribunal”
1. Central to understanding meaning of “judicial power” is recognition of doctrines: rule of law, independent judiciary, separation of judicial power.
2. Traditionally, purpose of judiciary to determine availability of “basic rights” by judicial review. Also other roles eg. criminal trial, determine legal rights.
3. Not EVERY power which traditionally was “judicial” will be TODAY. Still, the power to make an enforceable determination of judicial rights is exclusive to courts and cannot be vested in non-judicial tribunal.
Other powers exclusive to courts:
· Power of judicial review of legislative and executive action: Australian Communist Party v The Commonwealth (1951) 83 CLR 1; Marbury v Madison 1 Cranch 137 (1803).
· Power to adjudicate on existing legal rights and liabilities between persons is exclusive to court: Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442, 464-465
· Power to determine criminal guilt: Re Tracey; ex parte Ryan (1989) 166 CLR 518 at 580; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 22); and cannot be excluded from courts: Polyhukovich v The Commonwealth (1991) 172 CLR 501.
· SOP guarantees that Ch III courts will not take instructions from the legislature regarding the manner in which their jurisdiction will be exercised, or the result of a case: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Kable v DPP (NSW) (1996) 189 CLR 51.
o In Chu: P cannot require/authorise courts exercising judicial power “to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”.
· Ch III court has a duty to act and to be seen to be acting impartially: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Nicholas v The Queen (1998) 193 CLR 173 at 188.
Ch III courts enjoy particular implied or inherent powers that are incidental to judicial activity