The Court System. Aim of lecture: Understand Chapter III of the Commonwealth Constitution and: (a) The separation of powers doctrine (a) The separation.

The Court System

Aim of lecture:Understand Chapter III of the

Commonwealth Constitution and: (a) The separation of powers

doctrine (b) The meaning of ‘judicial

power’

Understand the courts and separation of powers at a state level and:(a) Totani(b) Kable 

Lecture Overview: COURTS

FEDERAL STATE

Separation of powers

Cth Constitution NSW Constitution

Boilermakers etc Totani/Kable etc

What is a court?

‘At the end of the day it has unfortunately to be said that there emerges no sure guide, no unmistakable hall mark by which a ‘court’ may unerringly be identified. It is largely a matter of impression.’

Lord Edmund in Attorney-General v British Broadcasting Corporation [1981] AC 303 at 351

The Court System

What is it that ‘makes a court’ – judicial power

The way in which the exercise of judicial power is separated from legislative and executive power – or the Separation of Powers

The differences between Federal and State judicial power

The attempts made to overcome differences between the Federal and State judicial powers – or the cross vesting scheme.

(IMPORTANT!)

Jurisdiction and Heirarchy of courts

Judicial hierarchies

Commonwealth courts

Must be a Chapter III court: ‘judicial power’

Judicial power

s71 Constitution:“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.”

S71 Constitution:

Vests the judicial power of the Commonwealth in the High Court and other Chapter III Courts.

Acknowledges that the Federal Parliament can invest State courts with Federal jurisdiction – (mentioned in s77(iii) of the Constitution) – and provides foundation for cross vesting scheme.

Makes clear that the judicial power of the Commonwealth can only be exercised by these s71 courts – or that the judicial power is clearly separated from the legislative and executive powers.

What is ‘judicial power’?

Answer in Chapter III of Commonwealth Constitution

AND

Constitutional case law decided by High Court (eg: Boilermaker’s Case)

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffiths CJ:

“I am of opinion that the words ‘judicial power’ as used in sec 71 of the Constitution mean 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 exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

Judicial power of the Commonwealth

s73: a “judgement, decree, order or sentence” e.g. Saffron v The Queen (1953) 88 CLR 523 or

ss75-77 a “matter” e.g. In re Judiciary and Navigation Acts

(1921) 29 CLR 257

Two questions:

Power – Is the power that the court is to exercise consistent with the judicial power - dealt with by considering the nature of judicial power , and

Jurisdiction – usually dealt with by considering the relevant legislation which created the court

Alexander’s case

Waterside Workers Federation v J W Alexander Ltd (1918) 25 CLR 434

Difference between judicial and non judicial power

s72 Commonwealth Constitution: judges appointed for life (now until retirement age of 70)

Griffith CJ…

As soon as man emerged from the savage state and formed settled communities, the necessity became apparent of rules to regulate conduct. It also became necessary to make provision for their enforcement, and for the settlement of private controversies between individuals. In each case the right to do so was assumed by the community at large, and vested in some person or authority representing that community. Hence arose lawgivers and Judges. And as civilization advanced, and persons came to discriminate between the diverse functions of the community, these functions were called "the judicial power" as distinguished from the legislative and executive powers.

Barton J at 451: judicial power

“It is the power of a Court to decide and pronounce a judgement and carry it into effect between persons and parties who bring a case before it for decision….”

“From the earliest times, when people have associated themselves into settled communities, their interest has dictated to them the adoption of rules of conduct as the alternative to anarchy and as the only means of securing internal peace in the pursuit of their avocations. The making of such rules, by whatever term it may have been known, is the making of laws; that is, it is legislation. But laws of themselves were of little force without bodies which could enforce them- and authorities with power to enforce them were created. These authorities might or might not be called Judges, the tribunals might not be called Courts, and the power which they exercised might or might not be called judicial power. Whether persons were Judges, whether tribunals were Courts, and whether they exercised what is now called judicial power, depended and depends on substance and not on mere name. Enforceable decision by an authority constituted by law at the suit of a party submitting a case to it for decision is in character a judicial function.” Barton J 451

Powers J at 485“a Court of judicature is a Court to settle existing rights between parties, but a compulsory arbitration Court is not a Court to settle existing rights. Its powers are more legislative than judicial. It is empowered to fix by an award, which is to have the effect of law, what wages are to be paid … The award is binding as a declaration of the law on persons who have not had any existing rights prior to the award, for it compels employers to pay the minimum wage fixed by the award …. The Arbitration Court is only asked to make an award when employers or employees are not content with existing rights and would not be content with any declaration as to existing rights.”

Isaacs and Rich JJ at 463-4 “Both [the judicial and arbitral power]

presuppose a dispute, and a hearing or investigation, and a decision. But the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other”.

R v Davison (1954) 90 CLR 353 at 369

“The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss71 and 72 of the Constitution.”

Separation of Powers

The reality?

The legislature (Cth)

The Judiciary (High Court)

Executive (Governor-General)

Sir Gerard Brennan:“The Courts are an important element in the system of checks and balances that preserves our societies from a concentration of official power that might otherwise oppress the people and restrict their freedom under the law. The Courts are an organ of Government but they are not part of the Executive Government of that country. … But the apolitical organ of government, the Courts, are there continually to extend the protection of the law equally to all who are subject to their jurisdiction: to the minority as well as the majority, the disadvantaged as well as the powerful, to the sinners as well as the saints, to the politically incorrect as well as those who embrace a contemporary orthodoxy. The principle of judicial independence is not proclaimed in order to benefit the Judges; it is proclaimed in order to guarantee a fair and impartial hearing and an unswerving obedience to the rule of law. That is the way in which our peoples secure their freedom under the law.”

The reality?

2 limbs…..

Separation of judicial powers principles: Limb 1: Commonwealth judicial power

can only be exercised by courts referred to in section 71 (Alexander’s case)

Limb 2: courts exercising Commonwealth judicial power can only exercise judicial power and non-judicial power that is incidental to the exercise of judicial power (Boilermakers’ case)

Boilermakers case

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

High Court (at 267) “in a federal form of government a part is

necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme…The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of respective powers of the governments were placed in the federal judicature.

Separation of judicial power“Chapter III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power, notwithstanding that it is organized as a court and in a manner which might otherwise satisfy ss71 and 72, and that Chap III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it” (at 296)

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs

(1996) 189 CLR 1 “the separation of functions

is designed to provide checks and balances on the exercise of power by the respective organs of government in which powers are reposed.” per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ at 11

Persona Designata rule

Hilton v Wells (1985) 157CLR 57 “Although the Parliament cannot

confer non –judicial powers on a federal court, or invest a State court with a non-judicial power, there is no necessary constitutional impediment which prevents it from conferring non-judicial power on a particular individual who happens to be a member of a court” (at 68 Per Gibbs CJ, Wilson and Dawson JJ.)

Delegation of Federal Judicial Power

Harris v Caladine (1991) 172 CLR 84

Power can be delegated but: the delegation cannot be such

that the judges no longer manage the more important aspects of contested matters, and

the exercise of the delegated power must be subject to review by the judges themselves.

The reality?

NSW separation of powers

New South Wales Constitution does not enshrine a separation of powers: Building Construction Employees and Builders' Labourers' Federation of New South

Wales v Minister for Industrial Relations & Anor (1986) 7 NSWLR 372;

SEE: Kable v Director of Public

Prosecutions (NSW) (1996) 189 CLR 51

Under s 10(1) of the SOCC Act, the Attorney-General is, on the making of an application by the Commissioner of Police, empowered to “make a declaration” if satisfied of two criteria:

“(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and

(b) the organisation represents a risk to public safety and order in this State”.

Section 14(1) provided that the Court“must” make a control order “if the

Courtis satisfied that the defendant is a

member of a declared organisation”. a breach of either of these or any

additional conditions of a control order is an offence

punishable by five years imprisonment.

Justice French….the extent of the intrusions upon personal freedom effected by a control order is relevant to the characterisation of the duty imposed upon the Magistrates Court under s 14(1) of the Act and to whether, contrary to assumptions reflected in Ch III of the Constitution, s 14(1) removes or impairs that independence from the executive that is a defining characteristic of courts of law in Australia.

Cross Vesting Scheme

s77(iii) Constitution s39(2) Judiciary Act “The several Courts of the States

shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred on it.”

Issues with Cross Vesting

Re Wakim; ex parte McNally (1999) 163 ALR 270

Commonwealth or Ch III Courts

High Court of Australia Constitution ss71-77 Judiciary Act 1903 (Cth)

Federal Court of Australia Federal Court of Australia Act 1976 (Cth)

Family Court of Australia Family Law Act 1975 (Cth)

Federal Magistrates Court of Australia Federal Magistrates Court Act 1999

(Cth)

NSW Courts

Supreme Court of New South Wales Supreme Court Act 1970 (NSW)

District Court of New South Wales District Court Act 1973 (NSW)

Local Courts Local Courts (Civil Claims) Act 1970

(NSW)

Non-judicial tribunals

Administrative Appeals Tribunal Australian Competition and

Consumer Commission Australian Competition Tribunal Australian Industrial Relations

Commission Australian Securities Commission Copyright Tribunal Refugee Review Tribunal Registrar of Trade Marks The Commissioner of Taxation