LAWS1205 Study Guide - Final Guide: Susan Kiefel, Temporary Protection Visa, Injunction
Week 10: judicial power
Sunday, 7 May 2017
19:58
Commonwealth Constitution: ss71-80
Defining judicial power section 71: what constitutes judicial power?
Huddart, Parker & Co Pty Ltd v Moorehead:
a. Griffith CJ: judicial power in section 71 means " the power which every
sovereign authority must of necessity have to decide controversies between its
subjects, or between itself and its subjects, whether the rights relate to life, liberty
or property. The exericise of this power does not begin until some tribunal which
has power to give a binding and authoritative decision is called upon to take action
Central element is the power to decide controversies.. Whether relating to life, liberty
or property. Hence a lack of sufficient decisional capacity or more specifically, the
menas of enforcing a determination of the rights of the parties will clearly indicate an
absence of judicial power.
Momcilovic v The Queen CLR: French CJ
a. Momcilovic was convicted for trafficking drugs on the basis that there were
drugs in her apartment. The Act specified that the onus of proof is reversed in
cases of drug possession – if drugs are found in a house, that person has the onus
of proof to prove that the drugs were not in their possession. Momcilovic argued
that it is an abrogation of her human right and is ultra vires
a. Concerned the validity and operation of the Charter of Human Rights and
Responsibilities Act 2006 (Vic)
b. Under s 32(1) of the Charter, the Supreme Court of Victoria is required to
interpret all statutory provision 'so far as it is possible to do so consistently with
their purpose.. In a way that is compatible' with various human rights guaranteed
by the Charter
c. S36(2) states that " if in a proceeding the Supreme Court is of the opinion that
a statutory provision cannot be interpreted consistently with human right, the
court may make a declaration to that effect in accordance with this section
a. The consequence of a court making a "declaration of inconsistent
interpretation" is an obligation under the Charter for the relevant minister,
within 6 months of receiving a copy of the declaration from the AG, to lay
before both Houses a written response to it
a. The court of appeal of the supreme court of Victoria made a declaration of
incompatibility in respect of s5 of the Drugs, Poisons and Controlled Substances
Act 1981 (Vic), which found incapable of being interpreted consistently with the
presumption of innocence guaranteed by s25(1) of the Charter
b. On appeal, the High Court was unanimous in finding that the declaration
power in s 36(2) did no confer judicial power on the Supreme Court of Victoria
c. Whether it is a declaration which involves the exercise of judicial power
d. In Truth About Motorways v Macquarie Infrastructure CLR: Gaudron J said "
a declaration cannot be made if it will produce no foreseeable consequences for
the parties…so divorced from the administration of the law as not to involve a
matter to the purposes of CHIII of the Cons. And as it is not a matter for those
purposes, it cannot engage the judicial power of the Commonwealth
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e. A declaration in this case, of inconsistent interpretation made under s36 does
not involve the exercise of a judicial function
f. When the declaration is made, the court will have decided all matters relevant
to the disposition of the proceedings
a. The power conferred by s36 plays no part in that process
b. The declaration sets no guidance for the disposition of future cases involving
similar principles of law
c. It has no legal effects upon the validity of the statutory provision which is its
subject
d. It has statutory consequences of a procedural character
a. Those statutory consequences are relevant to the AG as a member of the
executive and as a member of the Victorian Parliament and to the Parliament itself
b. This declaration of inconsistent interpretation cannot be regarded as
analogous to the judicial function nor any functions historically exercised by
courts
c. Cannot be described as incidental to judicial power for essentially the
same reasons that it cannot be described as an exercise of judicial power
Boilermaker's case: concerned with the concept of a non-judicial function conferred
as an incident of judicial power ; in the context of the authority conferred upon the Cth
Parl by s51(xxxix) of the Cons to make laws with respect to matters incidental to the
execution of any power vested by the Cons in the federal judicature.
a. Dixon Cj, McTiernan, Fullagar and Kitto JJ: what belongs to the judicial
power or is incidental or ancillary to it cannot be determined except by
ascertaining if it has a sufficient relation to the principal or judicial function
or purpose to which it may be thought to be accessory.
Steele v Defence Forces Retirement Benefits Board
a. Concerned with the distinction between a bare administrative function, and a
function appurtenant to the performance of a principal judicial duty to which it is
an accessory
A declaration under s36 does not able nor support nor facilitate the exercise by
the court of its judicial function. Nor does it have any part in giving effect to the
disposition of the proceedings by the court
The declaration of inconsistent interpretation cannot be described as incidental
or ancillary to the exercise, by the Supreme Court of Victoria, of its judicial power
French Cj and Bell Cj held s36(2) valid on the basis that it was permissible for
the Vic Parl to confer a non-judicial function on the Vic Supreme Court, but no
appeal from such declaration could be made to the High Court
Crennan and Kiefel JJ found he power to make a declaration under s36(2) as
incidental of the exercise of judical power
The declaration power was upheld
Momcilovic confirmed the validity of a state law that confers a power on state courts
to issue such declarations in accordance with the 'dialogue' model of human rights
protection. However, this decision also signalled the commonwealth Parl that enacting a
national bill or charter of rights, a similar power could not be granted to a federal court
An exercise of judicial power means that the parties are bound by the determination.
This decision also constitutes a statement of authority by which others more generally
may understand their rights and obligations
Exercise of judicial power makes the decision binding and authoritative
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NSW v Kable (2013) ALRcontrol
Concerned with the insistence on finality as an aspect of judicial power
In 1995, Levine J of the Supreme Court of NSW made an order detaining Gregory
Kable in custody for 6 months pursuant to a power conferred on the court by the
Community Protection Act 1994 (NSW)
That legislation was later declared invalid by the HC in Kable v DPP (NSW)(1996)
Kable sought a claim against NSW for damages
NSW court of appeal upheld Kable's claim in Kable v NSW 2012 basing on false
imprisonment, after concluding Levine J was not exercising judicial power when he
made the order, and did not have the attendant characteristics of validity as an order of a
superior court of record, until set aside
NSW successfully appealed to the HC
French CK, Hayne, Crennan, Kiefel, Bell and Keane JJ
a. All courts have the authority to decide whether a claim made in the court is
within its jurisdictions
a. Can be described as a court having jurisdiction to decide its own jurisdiction
b. Certiorari: a common law writ issued by a superior court to one of inferior
jurisdiction demanding the record of a particular case
c. A court's decision to a particular claim will be subject to review and
correction, through appeal or by grant of prohibition or certiorari
d. If it is said that a superior court is presumed to act within its jurisdiction,
that is best understood as a statement about the effect that is to be given to its
orders unless or until they are set aside
e. decisions made in the exercise of judicial power are given effect despite the
particular decision later being set aside or reversed
f. Otherwise, the exercise of judicial power could yield no adjudication of rights
and obligations to which immediate effect could be given
g. An order made by a superior court of record would have no more than
provisional effect until either the time for appeal or review had elapsed or
final appeal or review had occurred. Both the individuals are affected by the
order
h. If the detention order made by Levine J was not effective until set aside, those
apparently bound by the order were obliged to disobey it., lest they be held
responsible for false imprisonment.
i. Kable argued the order was without legal effect and should not have been
obeyed
j. The decision to disobey the order would have required both the individual
gaoler and the executive government of NSW to predict whether this court would
accept what were then novel constitutional arguments
k. " a status where everybody is authorised to declare every norm, that is to say,
everything which present itself as a norm, as nul, is almost a status of anarchy
The creation of tribunals whose functions appear to overlap with judicial power
has been a regular source of constitutional litigation before the High Court.
R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries (1970) CLR
The functions of the Trade Practices Tribunal as defined by the Trade Practices Act
1965 did not involve judicial power and were thus validly conferred
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Document Summary
The exericise of this power does not begin until some tribunal which has power to give a binding and authoritative decision is called upon to take action. Central element is the power to decide controversies Hence a lack of sufficient decisional capacity or more specifically, the menas of enforcing a determination of the rights of the parties will clearly indicate an absence of judicial power. Momcilovic v the queen clr: french cj: momcilovic was convicted for trafficking drugs on the basis that there were drugs in her apartment. Momcilovic argued that it is an abrogation of her human right and is ultra vires: concerned the validity and operation of the charter of human rights and. Responsibilities act 2006 (vic: under s 32(1) of the charter, the supreme court of victoria is required to interpret all statutory provision "so far as it is possible to do so consistently with their purpose
