Class Notes (836,591)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

12. Separation of Powers.doc

15 Pages
104 Views
Unlock Document

Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Separation of Powers The doctrine of the separation of powers— (1) Legislative power vested in the Parliament: s1 (2) Executive power vested in the Queen (exercised by GG): s61 • Although not a full separation from the legislature: s64 • E.g. application of law to facts—centrelink application, liquor licensing, etc • Bodies to review executive decisions can be: • Court—tenure required ← exercising judicial power | an appeal • “tribunal”, “panel”, “board”—tenure not required ← exercising executive power in place of original decision-maker | a review (still have responsibility to act like an executive decision-maker—chameleon principle | impartially—quasi-judicial) (3) Judicial power vested in the HCA: s71 (‘only’ not in section but implied lest the section lose all meaning) • Decision as to the pre-existing rights of parties to a dispute, based on pre-existing law (WWF v Alexander; Rola per Rich J; Tas Breweries per Kitto J; Ranger Uranium) • Justices of federal courts not to be removed except on address of both houses | salary cannot be reduced: s72 • Originally no retiring age→ now 70 (since 1977) • ← Guarantee of tenure to judges is the only guarantee of impartiality in cases involving the State (eg, all criminal litigation) • Separation is not enforceable under State Constitutions: BLF case • Commonwealth can create “other federal courts” s71 and vest Federal jurisdiction in them ss76 & 77 • Separation of powers—Boilmakers doctrine—2 main aspects: 1. Federal judicial power must be vested in a federal Court which has tenure as defined by s.72. 2. Non-judicial power can be vested in a Federal Court, only if it is “auxiliary or incidental to” judicial power. SUMMARY (1) Is the body a Chapter III court? → Does it have tenure under s72? → Is it a federal court, or a court invested with federal jurisdiction IF YES • It can only exercise non-judicial power if auxiliary and incidental to the judicial power: Boilermakers case • No function can be conferred that is INCOMPATIBLE either with the Judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power IF NO • It cannot exercise judicial functions Andrew Trotter LWB242 2009-1 A Chapter III Court? = Federal Act that vests judicial power in non-judicial body is invalid: s71 + Federal Act that vests non-judicial power in judicial body is invalid 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 judges of all such courts must have tenure: s72 o (i) appointed by GG o (ii) only removed upon misbehaviour or incapacity  (by GG in council & both houses of Parliament)  Max age: 70 yrs  Parliament can alter age for courts it creates o (iii) fixed remuneration 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. • Federal judicial power can be vested in a State court: s77(iii) With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) 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; (iii) investing any court of a State with federal jurisdiction. Andrew Trotter LWB242 2009-1 “Judicial Power” → cannot vest in non-judicial body Basic definition Prima facie, judicial power involves a • directly enforceable decision • as to the pre-existing rights of parties • based on pre-existing law: Alexander; Rola per Rich J; R v TPT; ex parte Tas Breweries per Kitto J. Judicial Power Executive • Adjudgment and punishment of criminal guilt: Waterside Worker’s Federation v J W Alexander (Court of Conciliation & Arbitration—heard industrial disputes | handed down sentences—7yr appointment only  invalid); Industrial Lighting (Minister having right to close premises for not meeting industrial lighting regulations—even in wartime  invalid (1943)) • Powers to declare invalidity of an Act: NSW v Cth (Wheat Case) (Interstate Commission created—permitted by established through s101 with powers of adjudication—power to declare railway tariffs etc invalid—but s103 commissioners only 7yr term  no tenure— no power to declare laws invalid | could only exercise powers ‘incidental and ancillary’ to its executive functions || notwithstanding contradiction in Constitution → fairly impotent → interstate commission abolished) • Ruling that dismissal of an employee was contrary to an award: Austin (involved interpreting an award  must be given to a judge) o Cf. Ranger Uranium (making new rules for the future as to when a dismissal is ‘unfair’) • Interpretation of an award: Re Cram (local coal authority—ruling that employers not paid proper wages) o Cf. R v Hegarty (settle differences about existing classifications—clarifying rules for the future) • Granting injunctions against breaches of an Act: Mikasa o Commit for contempt for breach of the injunction: Boilermakers • Orders for recovery of possession of land: Silk Bros v SEC (fair rents board—ordering recovery of possession of land | exclusive of courts powers | enforced as if a court order— even in wartime) • Ordering detention with no recourse to courts: Lim. (A power, vested in the executive, to order detention of people, with a section in the Act providing that a Ct could not order the detainees’ release from custody) • HCA jurisdiction as Court of Disputed Returns is judicial: Sue v Hill • Decisions registered with court, even if subject to review by that court: Brandy v Human Rights and Equal Opportunity Commission (Racial Discrimination Act 1975—decision of Commission on act of racial discrimination → registered with the federal court | would take effect as if it were an order of that court unless the court reviewed the decision | review was not based on new evidence except with the leave of the Ct  invalid) Parliament • Bill of Attainder, Pains and Penalties: Polyukhovich (law not addressed specifically at a person, declaring guilty and sentencing—although not the case here—merely ‘any person who committed a war crime in WWII) Andrew Trotter LWB242 2009-1 • Act providing for imprisonment without appeal: Lim (Parliament decreeing that person imprisoned not subject to judicial review) • A Bill which declares facts so as to put an Act within enumerated powers: Australian Communist Party Case (declaring that ACP came within a certain category) • Separation of powers applies equally in wartime: Silk Bros v SEC (fair rents board— ordering recovery of possession of land | exclusive of courts powers | enforced as if a court order—even in wartime); Industrial Lighting (Minister having right to close premises for not meeting industrial lighting regulations—even in wartime  invalid (1943)) Involuntary detention • Generally detention of persons = incident of determining criminal guilt or innocence = judicial power: Lim v Cth • Exceptions: Lim v Cth o Prior to trial after arrest (but must have opportunity to apply for bail) o mental illness o infectious disease (quarantine) o detention of illegal aliens (for deportation): Lim v Cth (boat people from Vietnam— designated persons to be imprisoned | s54R: court not to order their release  invalid ← detention of illegal aliens lawful, but must have opportunity to dispute that they are an ‘illegal’ alien) o custody of child for benefit: Kruger (stolen generation case 1997) o categories of exceptions are not closed: Kruger • If treatment while in detention amounts to punishment (inhumane conditions etc) → invalid? → no decision: Behrooz v Secretary of DIMIA [2004] HCA 26 (Escaper from Woomera argued conditions of treatment not authorised by act | or if they were, inhumane treatment = punishment imposed exjudicially, therefore unconstitutional—escaping no offence  first argument accepted—treatment not authorised by act—but should have sued in tort rather than escaping: S v Secretary of DIMIA (later case)) • Indefinite detention is not punitive so long as Cth has eventual purpose of deportation: Al Kateb v Godwin [2004] HCA 37; MIMIA v Al Khafaji [2004] HCA 38 (Unlawful aliens held in detention waiting for deportation—but no country had agreed to take them → argued that indefinite detention was beyond the aliens power and was punishment and thus could not be imposed by a non-Chapter III court  Act authorized indefinite detention | not punitive | as long as Aust still searching for new country to deport—aim was not indefinite detention) o /!\ Dissent by Gleeson CJ, Gummow and Kirby JJ that the Act should be read down so as not to authorize indefinite detention • Implication that preventative detention might be unconstitutional: Thomas v Mowbray [2007] per Gummow & Crennan JJ (control orders—prohibiting person from going to certain places, communicating with certain people, etc, but still ‘free’ to live at home  no problem because a court ← argument that control orders should be ordered by the executive rejected—would be even more oppressive || different from detention ← i.e. detention unconstitutional for courts / therefore for executive also?) Andrew Trotter LWB242 2009-1 Not Judicial Power Historical Exceptions (less significant & quite unsatisfactory) • Courts-martial Tracey, confirmed in Re Colonel Aird [2004] HCA 44; White v Director of Military Prosecutions [2007] HCA 29 (not limited to desertion in the face of the enemy— no express separation from chain of command) o But new system: 7 year term for judges—then forced to retire—pension— independent from chain of command (unlikely challenge to this system currently underway on basis of GG power s68) • Parliamentary “trials” for contempt—parliament acts as judge, jury & jailer: R v Richards ex p Fitzpatrick & Browne (1955) (published newspaper—defamatory allegations against a member of parliament in order to intimidate member—called before bar of parliament rather than before a court  valid) o But Parliamentary Privilege Act now restricts such trials—not for mere defamation of a member • Public service disciplinary tribunals, as long as only with penalties relating to employment (not imprisonment, fines beyond docking of pay etc): R v White, ex p Byrnes (1963) (demoting, docking pay, etc) Other Qualifications Making new rules for the future ← court is not looking at pre-existing legal rights Examples o Ranger Uranium (making new rules as to when a dismissal is ‘unfair’)  Cf Austin (retrospective judgement about dismissal) o R v Hegarty (settle differences about existing classifications—clarifying rules for the future)  Cf. Re Cram (local coal authority—ruling that employers not paid proper wages) o Boilermakers case (handing down of industrial awards for different industries/employers) o Luton v Lessels (determining non-custodial parent’s payment on a case-by-case basis through the tax department) Preliminary investigations—if no binding decision reached on guilt or innocence: • Huddart Parker (The Comptroller of Customs—power to demand answers to questions about importations—power to impose penalties for not answering—answers were admissible, right against self-incrimination could not be relied upon → HP (shipping coy) challenged because the comptroller of Customs does not have tenure  POWER VALID ← only preliminary to court action—if it had been judicial power, could not have been vested in Conptroller—would have been invalid) Right granted by statute → liable to be taken away by statute: • R v Quinn (right to a trademark is a right given by statute, not a traditional right | power of registrar to cross off trademarks according to certain criteria—applying pre-existing law to pre-existing fact = like judicial power  but right given by statute can be taken away by statute → valid) Andrew Trotter LWB242 2009-1 Decision involves public and economic policy as well as legal principles: • Involving economic judgment: Tasmanian Breweries (Trade Practices Tribunal—finding whether company practice (1) contrary to TPA; (2) contrary to public interest (eg anticompetitive activities possibly ok if help to compete in overseas market))  weighing up matters of economics not just of law → public benefit / detriment → not exclusive to judicature) • Making new ad-hoc laws in each case: PDH v Wills | A-G v Alinta (take-over panel looking at honesty of conduct involved in the takeover bid—clear legal criteria—mandated by act to promote best operation of market  validly given to non-judicial body ← executive body making new ad-hoc law in each case) The power is one that could reasonably be exercised judicially or non-judicially • Given it to a non-judicial body → to be exercised non-judicially || given it to a judicial body → to be exercised in a judicial way: Shell (Taxation Board of Review answering questions of law and fact on taxation | subject to judicial review  subject to judicature ← exercising executive power); R v Hegarty (settle differences about existing classifications —clarifying rules for the future  executive power) • Classification depends on the body the function is given to, the context and manner of its exercise o Inquisitorial powers may suggest non-judicial (administrative) o Long fact finding and decisions of law may suggest judicial • EXCEPT power historically exercised by courts → judicial even if theoretically exercisable in executive capacity: o Davison (Registrar granting uncontested bankruptcies—not the type of power that couldn’t be executive—but traditionally the jurisdiction of the courts  must be judicial power); o Bayer Pharma (Registrar could hear an objection to a registration of trademarks (a non-judicial power) | an appeal that could go to the Solicitor-General, or the Supreme Ct or the HC (all with the same grounds of appeal)  The appeal to the law-officer probably valid ← words which might otherwise confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power was conferred) Decision not conclusive—open to appeal → non-judicial • Only a Chapter III court can make a conclusive finding as to the state of the law: Luton v Lessels • Final and conclusive → judicial: o British Imperial Oil, Shell (Board=statutory body making decisions on tax—same parties, different names | BIO—invalid ↔ Shell—valid ← different arrangements: (1) word ‘appeal’ | (2) conclusive nature of the act) o Harris v. Caladine (1991) (Family Ct Registrar making orders under Family Law Act (eg uncontested orders regarding property, divorces, etc | appeal allowed to courts  valid) Andrew Trotter LWB242 2009-1 • Cf. Purports to make conclusive decision → judicial power: Re Cram (local coal authority— ruling that employers not paid proper wages) • Use of the word ‘appeal’ in the act is thus some evidence of judicial function: British Imperial Oil (because ‘appeal’ is case going from one court to a higher court—implies that lower court is judicial body) o Not conclusive that it is judicial power: Shell Decision is not immediately enforceable → non-judicial • ie. the enforcement of any decisions being left to a court → not judicial power • Huddart Parker (The Comptroller of Customs—power to demand answers to questions about importations—power to impose penalties for not answering—answers were admissible, right against self-incrimination could not be relied upon → HP (shipping coy) challenged because the comptroller of Customs does not have tenure  POWER VALID ← only preliminary to court action—if it had been judicial power, could not have been vested in Conptroller—would have been invalid) • Tasmanian Breweries (Trade Practices Tribunal—finding whether company practice (1) contrary to TPA; (2) contrary to public interest (eg anticompetitive activities possibly ok if help to compete in overseas market))  weighing up matters of economics not just of law → public benefit / detriment → not exclusive to judicature || also, if the organisation kept participating in the conduct, the TPT didn’t punish it, the TPC had to separately take the corporations to the Federal Ct to punish them) • However in Brandy v Human Rights and Equal Opportunities Commission the fact that orders made only had to be registered in the FCA and were then binding and subj
More Less

Related notes for JSB171

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit