LAW 1504 Lecture Notes - Lecture 4: Parliamentary Privilege, Constitution Of Australia, Persona Designata
23 May 2018
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APPLICATION & EXCEPTIONS TO
BOILERMAKERS
(When the courts will invalidate Cth legislation)
1st LIMB: The Judicial power of the
commonwealth can only be vested in a Ch III
court (including State courts vested with federal
judicial power under s 77(iii))
APPLICATIONS
1. Legislative Usurpation of Judicial Power
by E– run indicia of JP.
2. Detention- exclusively judicial- unless a
strict exception applies
Polykovich v Commonwealth
• The parliament can say what the law is but
ONLY a Court can make a decision or decide
whether someone is guilty or not.
• Parliament cannot make legislation that is
directed to a person (or a class of persons) as
guilty of an offence under the law (Bills of
Attainder/Bills of Pains & Penalties) as this
would be usurpation of judicial power as only
a court can make this decision.
• court’s actions cannot become inconsistent
with the essential requirements of the court or
with the nature of judicial power.
• DOES NOT prevent retrospective criminal
law so long as the court determines whether an
individual is guilty or not.
• Parliament makes standards, court determines
breach
Lim v Minister for Immigration
• Defined Bills of Attainder/Bills of Pains and
Penalties
o It is a law (1) directed to an individual or a
particular group of individuals (2) which
punishes that individual or individuals (3)
without the procedural safeguards involved
in a judicial trial.
Liyanage v R
• Authority that any legislation that imposes
severe interference with judicial power
would be invalid.
• This is to keep judicial power separate and
ensure that the Parliament cannot make
laws that change what the court does so
that it becomes unfair or dependent on
Parliament’s whim.
FIRST LIMB EXCEPTIONS
A non Ch III court can exercise JP when
1. Delegation of judicial functions to
administrative officers of courts. Harris v
Caladine However, must be to a limited extent and
remain subject to review by the court.
2. Parliamentary privilege
Parliament’s power to punish for contempt,
which is historically viewed as non-judicial
power. -Australian Constitution s 49- journalists
publishing defamatory material(R v Richards; Ex
parte Fitzpatrick and Browne)
3. Military tribunals- Detention pursuant to
military law
• not Ch III courts, established under defence
power s 51 (vi).
• Military tribunals are JP outside Ch III. But
subject to defence and civil jurisdiction
simultaneously (Re Tracey; Ex parte Ryan)
4. Non- punitive detention
• Generally: involuntary detention of a citizen
can only be as a result of a court’s judgment in
finding that person guilty of an offence
deserving of detention- exclusively judicial
function. Chu Keng Lim v Minister for
Immigration MAIN AUTHORITY
• Unless: detention is for a non-punitive
purpose:
o bail/ mental illness/ infectious disease
(quarantine)/ parliament contempt/
military
o Person is on REMAND (detained for
administrative reasons so that they are
available to be tried when the court is
ready) (Lim)
o Enemy aliens/ non-citizens to receive,
investigate and determine investigation to
admit or deport. Not punitive in nature
nor JP of Cth (Lim)/ (Al-Kateb)
• Thus: A power of detention which is punitive
in character and not consequent upon
adjudgment of criminal guilt by a court cannot
be conferred upon the Executive by a law of
the Commonwealth’: Kruger v
Commonwealth
How to determine PUNITIVE?
• Reasonably capable of being necessary for a
legitimate non-punitive purpose. Not result.
Unclosed categories.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Boilermakers (when the courts will invalidate cth legislation) 1st limb: the judicial power of the commonwealth can only be vested in a ch iii court (including state courts vested with federal judicial power under s 77(iii)) Applications: legislative usurpation of judicial power by e run indicia of jp, detention- exclusively judicial- unless a strict exception applies. Polykovich v commonwealth: the parliament can say what the law is but. Lim v minister for immigration: defined bills of attainder/bills of pains and. Penalties: it is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial. A non ch iii court can exercise jp when: delegation of judicial functions to administrative officers of courts. Caladine however, must be to a limited extent and remain subject to review by the court: parliamentary privilege.
