LAWS1205 Study Guide - Final Guide: Family Law Act 1975, Criminal Intelligence, False Imprisonment
Week 11:
Sunday, 14 May 2017
13:34
Exceptions to the BoilerMaker case
Appeals from territory to the HC are commonly assumed to depend on an
exercise of legislative power under s 122 ( territory courts are neither regarded as
federal courts nor as exercising federal jurisdiction)
R v Richard ; Ex Parte Fitzpatrick and Browne: where the CTh Parl as treated has
having independent judicial power to punish for contempt of parliament
Military Tribunals
The BoilerMaker case rejected grants of power in s51 for example, (xvii) as to
bankruptcy, or para(xxii) as to divorce and matrimonial causes, could be construed as
extending to the creation of courts with jurisdiction appropriate to the subject matter of
the power
R v Bevan; Ex parte Elias and Gordan: it was held courts martial and other
military tribunals were validly established under the defence power s51(vi)
R v Cox: Ex parte Smith: that R v Bevan facts was an apparent exception to the
general rule, since such tribunals do not form part of the judicial system administering
the law of the land.
This reflects the traditional Anglo-Australian system whereby the armed forces have
been permitted to try members for alleged offences in front of tribunald constituted by
military offciers reporting to their superiors within the command structure , rather than
the ordinary courts
Re Woolley: Ex parte Applicants M276/2003: McHugh J took the view that while
the power of Parliament to punish for contempt is an exception that is more apparent
than real, the judicial power of military tribunals is a true exception that can only
be explained on historical grounds
White v Director of Military Prosecutions
Asked to overrule Bevan and Cox
But declined
This case was decided before the system of courts martial and Defence Force
Magistrates was abolished by the Defence Legislation Amendment Act 2006(Cth)
S114 of the Defence Act replaced them with a court of record which was to be known
as the AMC. The new court was invested with jurisdictions under s115 to try charges
brought under the Act
Its judges were not appointed with accordance to s72 of the Cons, but appointed for a
term of 10 years, with the appointment terminating if ceased to be member of the
Defence Force
This departure from CHIII of the constitution was reflected in notes 1 s114 which
stated , the AMC is not a court for the purposes of CHIII of the cons
Lane v Morris
Brian Lane was charged under the Defence Force Disicpline Act with an act of
indecency without consent and wth assaulting a superior officer
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This charges related to acts allegedly committed while he was a member of the RAN
Lane sought the HC to declare that the provisions creating the Australian Military
Courts were invalid
His argument was accepted by a unanimous HC
The Court recognised, consistently with White, the Cth may establish a system of
military justice outside of CHIII by using its defence power under s51(vi).
However, this was not what had happened in the creation of the AMC
The 2006 Act took the AMC beyond what is authorised
The description of the military justice system given by Dixon J in Cox , adopted in
White by Gleeson CJ and underpinned the emphasis by Gummow, Hayne and Crennan
upon an understanding of that system in 1900. that was sytem, their houses observed
{231 CLR, 596], "directed to the maintenance of the defining charateristics of armed
forces as disciplined forces organised hierarchically". Within that command structure,
and in contrast to the operation of the civilian justice system, that sentences of courts-
martial required confirmation by a superior offier and that confirmation in turn might be
quashed upon petition to higher levels of the chain of command
The 2006 Act established the AMC outside the previous command structure and the
Parl exceeded the exercise of power conferred by s51(vi)
Hayne, Heydon, Crennan, Kiefel and Bell JJ reached the same conclusion,
noting: it is the independence of the AMC from the chain of command which is the
chief feature distinguishing it from earlier forms of service tribunal which have been
held not to exercise the judicial power of the Commonwealth.
"whereas the decisions of a court-martial to convict and sentence a member of the
forces were subject to automatic review and confirmation by reviewing and confirming
officers designated by a chief of staff and the decisions of the AMC were not to be
subject to any review or confirmation within the chain of command"
After this, a system of courts were reinstated by the Military Justice
(Interm Measures) Act (No 1) 2009 and Military Justice (Interm measures)
NO2
Haskins v Cth (2011) CLR
Haskin detained by the AMC as punishment for misuse of a defence travel card and
now sought damages for false imprisonment
Claimed the Interim Measures Act (NO2) was a legislative usurpation of judicial
power
HC said that only CHIII court could impose the punishment of detention on the
plaintiff or others with whom the AMC dealt
That premise of exclusivity , demonstrates the earlier decisions of the Court
upholiding as valid under s51(vi) the service tribunals that existed before the AMC
The court reiterated this that the Interim Measures Act (No2) amounted to an
enlargement of the existing exception to CHIII of military justice
Reasons for exception that the imposition of punishment by a service tribunal on a
member of the defence forces is not an exercise of the judicial power of the Cth
i. The punishment is imposed by the exercise of the power of command
(legislatively regulated) that is necessary and defining characteristics of the
defence force" a power of command that is essential to the creation and
maintenance of a disciplined and effective fighting force
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ii. There is no binding and authoritative decision of guilty or
determination of punishment for a service offence that stands apart from the
chain of command of the defence force
The imposition of punishment within Australia's defence force has been regulated by
statue since the time of federation, and the history of naval and military discipline can
be traced in Britain to at least 17th century
The imposition of punishment on officers was rested upon officers senior to the
officer or officers immediatel responsible for fixing the punishment in question
The impugned provision does not finally fix the punishments that are to be deemed to
have been imposed
Two other exceptions to BoilerMAker
1. Assignment of judicial functions to administrative officers: delegation under
continuing judicial supervision
2. Assignment of non-judicial functions to a judge (personata designata, in their
personal capacity)
a. However limits to personata designata: if the assignment to any federal judges
of functions incompatible with the exercise of federal judicial power. This
incompatibility doctrine is a separate limitation that may validly be assigned
to judges
Delegation of Judicial Power
Bankruptcy and matrimonial jurisdictions
Whether the judicial power of the Cth could be exercised by court registrars,
masters or other senior admin officers of the court
R v Davison: making of sequestration (write for seizure of property) order involved
judicial power that could not be validly be entrusted to a registrar or deputy registrar
under the Bankruptcy Act 1924 (Cth)
Kotsis v Kotsis : held that federal jurisdiction conferred on the SC of NSW by the
Matrimonial Causes Act could only be exercised by the court, so that a Deputy
Registrar had no power to make an order for costs
Knight v Knight: Master in the SC of SA similar view as above cases
Cth v Hospital Contribution Fund of Australia (HCF case): held a Master of the
SC of NSW could be properly seen as ' part of the organisation through which the
powers and jurisdiction of the court were exercised", in both federal and state
jurisdiction
a. Mason: provided that the exercise of jurisdiction is subject to review or
appeal
b. Murphy J: Parl may authorise the exercise of its jurisdiction by officers or
others who are not justices provided they under real supervision and control of the
justices of the court
Harris v Caladine: held that the Family Law Act 1975 , delegating power to make
certain orders by a Registrar of the Family Court of Australia was valid
i. Established in the HCF case that some part of federal jurisdiction of a
state coourt may be exercised by a master or registrar with conformity with
state legislation
ii. Davison at 368: the exercise of judicial power included a range of
functions which might be give to courts or adminstrators. If a particular
function can be entrusted to an administrator, there is nothing inherent in the
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Document Summary
Appeals from territory to the hc are commonly assumed to depend on an exercise of legislative power under s 122 ( territory courts are neither regarded as federal courts nor as exercising federal jurisdiction) R v richard ; ex parte fitzpatrick and browne: where the cth parl as treated has having independent judicial power to punish for contempt of parliament. R v bevan; ex parte elias and gordan: it was held courts martial and other military tribunals were validly established under the defence power s51(vi) R v cox: ex parte smith: that r v bevan facts was an apparent exception to the general rule, since such tribunals do not form part of the judicial system administering the law of the land. This case was decided before the system of courts martial and defence force. Magistrates was abolished by the defence legislation amendment act 2006(cth)
