LAWS1205 Study Guide - Final Guide: Berlin Outer Ring, Panel On Takeovers And Mergers, Alinta
Judicial power and Administrative Tribunal
Boilermaker: federal judicial power cannot be vested in a non-judicial body
Generally when power conferred on an administrative, or quasi-judicial,
tribunal appears to have judicial and non-judicial power
Federal Commissioner of Taxation v Munro
If the legislature could validly go on to give the tribunal jurisdiction to enforce the
decision by execution, the function would judicial
If not, then the function assigned would not be judicial
Issac j: judicial power includes enforcement, the punishment of crime or the trial
actions for breach of contract or civil wrongs is appropriate exclusively to judicial
action
Brandy v Human Rights and Equal Opportunity Commission
1992 and 1993 to the racial discrimination act were held to be invalid
Before the 1992 Amendments, the Human rights commission was empowered to
make determinations in response to complaints of racial discrimination and the
respondents may comply with the decision. But even if successful, it was not
enforceable and had to apple to the Federal Court, this was costly
Amended in 1993 that determinations by the Commission be registered in the Federal
Court, and thus the new provision , a determination was to have effect as it were an
order made by the Federal Court unless the respondent applied for a review
Prior to 1992 amendments Commission's determination had many of the hallmarks of
judicial power but not directly enforceable and was thus validly trusted to an admin
body
But because the amendments provided machinery for direct enforcement, the 1992
amendments removed the one factor which had rendered the determination non judicial
Judicial decisions determine rights and obligation according to law and not of
administrative discretion
The present case, the Commission's functions point to many aspects of judicial
power, deciding controversies between parties, determine rights and obligations based
on facts and according to law
Also determine whether the provisions inss9 and 15 of the racial Act had been
contravened, this is clearly the exercise of judicial power
Also provide remedies, such as injunctive relief etc and which may be viewed as
punitive and making it closely to those of a court in deciding criminal or civil cases
Attorney-General v Breckler
Whether the Complaints Act, in particular the provisions for the determination by the
Tribunal of complaints against trustees of regulated superannuation fundsm brings
about a conclusive determination as to the existing rights and entitlements of members,
enter inter se or against the trustee or both, and as to the existing duties and
responsibilities of the trustee
Does determination by the tribunal of complaint offender CHIII because it
creates a new charter by reference to which the existence of the rights or
obligations of the parties to the complaint are to be decided between those persons
or classes of persons
Brandy: the mere registration in the Federal Court of the determination gave it an
effect an order of the Court. Converted a non-binding admin determination into a
determination binding, authoritative and enforceable. This contravened CHIII
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Boilermaker: federal judicial power cannot be vested in a non-judicial body. Generally when power conferred on an administrative, or quasi-judicial, tribunal appears to have judicial and non-judicial power. If the legislature could validly go on to give the tribunal jurisdiction to enforce the decision by execution, the function would judicial. If not, then the function assigned would not be judicial. Issac j: judicial power includes enforcement, the punishment of crime or the trial actions for breach of contract or civil wrongs is appropriate exclusively to judicial action. Brandy v human rights and equal opportunity commission. 1992 and 1993 to the racial discrimination act were held to be invalid. Before the 1992 amendments, the human rights commission was empowered to make determinations in response to complaints of racial discrimination and the respondents may comply with the decision. But even if successful, it was not enforceable and had to apple to the federal court, this was costly.
