LAWS1116 L2, 2011

LAWS1116 L2: Separation of Powers ctd.
Element 3: Decision must be conclusive
o Does not mean that there is no appeal
o Means if not appealed, it is final
o Decision is not conclusive if it:
 can be attacked in a collateral action
 Can be reheard de novo in appeal
o Collateral attack: a separate challenge, not appeal
o De Novo hearing: complete rehearing on facts and law.
Brandy v HREOC (1995) 183 CLR 254
• HREOC was not a court but a non-judicial tribunal
• Hence, it could not exercise judicial power
• HREOC decisions were appealable within 28 days
• On appeal, the Federal Court ‘may review all issues of fact and law’
• The Act left it to the Federal Court to determin the extent of review (because of the word ‘may’
• If there was no appeal the HREOC decision had ‘effect as if it were made by the Federal Court’
• The issue was whether the HREOC decision was conclusive and hence judicial
• HREOC argued that its decision were not conclusive because of the Federal Court could conduct a complete de novo hearing in appeal.
• High Court held that the HREOC decision was conclusive and hence judicial.
• The Court stipulated the requirements of a complete re-hearing:
1. The first decision is not enforceable simply because the aggrieved party failed to appeal.
2. There is no onus to appeal by aggrieved party.
3. To enforce the decision, a new action must commence in a proper court.
4. Must lead all the evidence again.
5. The court must rehear the case on facts and law.
• The appeal from the HREOC decision did not satisfy these conditions.
• The Commonwealth government subsequently amended the HREOC Act to conform to the decision.
Element 4: Non-consensual nature
• Judicial power arises from the operation of law when an action is instituted.
• There need not be a prior agreement of the parties to confer jurisdiction on the court.
o There are many instances/circumstances where private tribunals exercise, what in all respects, judicial powers. But it isn’t considered judicial power of the Commonwealth because it arises out of contract.
• The following tribunals derive their power from contract and do not exercise the judicial power of the Commonwealth.
o Commercial arbitration;
o Football League Tribunal; and
o Company disciplinary inquiry.
When an element is missing
• Normally, the High Court will find the absence of judicial power
• However, the High Court has on rare occasions has treated a power that lacks judicial attributes as judicial for historical reasons.
• Examples:
o Sequestration orders (orders made by a court in the course of a trial): Davison
o Equitable adjustment of contracts in war time (the power that the courts were given during WWII to alter existing contracts): Peacock.
o Maintenance orders (made in the proceedings ordering one party to pay maintenance to the other party): Cominos.
The theory of ‘Chameleon Powers’
• In Q v Quinn (1977) 138 CLR 1, the High Court held that the power vested in the Registrar to cancel the registration of a trademark was non-judicial.
• Previously this power had been vested in the High Court.
• In Farberfabriken (159) 101 CLR 652, the High Court held that this was judicial power, hence validly vested in the High Court.
• If so, how can this power be vested in the Registrar who is not a court?
• In Q v Quinn, the Court held that this power belongs to a class of chameleon-like powers.
• This means that this power becomes judicial when vested in a court and becomes non-judicial when vested in an executive official.
• This decision defies the principle of non-contradiction, the most important principle of logic and of all science.
• Aristotle: It is impossible to hold [suppose] the same thing to be and not to be’. See pp 142-3 of F&T for Suri’s criticism.
• In Vesnic v ASIC (2007) 234 ALR 413, Kirby J condemned this doctrine, so you may ignore it.
Rules of Separation
• Definition of judicial power: controversy, affects rights, conclusive, arises from the operation of law (hence it is non-consensual).
• Legislature power:L making general rules
• Executive power: administration, police, military, foreign affairs, contracts, quasi-judicial powers
Separating Judicial and Non-judicial powers
Prohibitory rules
• Prohibits Ch III courts from exercising non-judicial powers
• Limited judicial power of the Commonwealth almost exclusively to Ch III courts.
• Prohibits Parliament from taking away the judicial power vested in Ch III courts by the Constitution.
Permissive rules
• Recognise exceptions to prohibitory rules
• Allow Ch III courts to exercise some non-judicial power.
• Allow other bodies to exercise some judicial power.
Prohibitory Rule 1
• Judicial power of the Commonwealth must not be vested in a body not designated in Ch III, s 71
• Ch III courts:
o High Court;
o Other federal courts created by Parliament; and
o State courts in which Parliament vests federal judicial power.
• Authority: Boilermakers (1956) 94 CLR 254 affirmed by Privy Council in A-G Commonwealth v Queen (1957) 95 CLR 529 (NB: appeals to Privy Council not available after 1966).
Prohibitory Rule 2
• Judicial power of the Commonwealth can only be vested in a court in the strict sense (rule in Alexander’s Case (1918) 25 CLR 434.
• What is a court in the strict sense?
o It is intended by t Act creating it to function as a court.
o It has the procedures and trappings of a court.
• The ultimate test is whether the tribunal’s primary/main function is judicial (Alexander’s Case, Boilermakers).
Prohibitory Rule 3
• High Court and Federal Courts must be constituted as provided in s 72.
1. Judges are appointed by Governor-General.
2. Hold office until age of 70.
3. Judges are removable only on address of both houses on grounds of:
 proved misbehaviour; or
 incapacity.
4. Parliament determines the salary of judges and it cannot be changed during their tenure: s 72(ii)
Alexander’s Case
• High Court judges were appointed for seven year renewable terms to Arbitration Court.
• Griffith CJ approved the practice as the judges continued to have life tenure as High Court judges.
• But it was disapproved by Barton and Powers JJ.
• Reasoning: Judges’ independence is undermined if they depend for office on the executive for reappointment.
Prohibitory Rule 4
• Court may delegate, but not abdicate, judicial power of the Commonwealth: Harris v Caladine (1991) 172 CLR 84.
1. Delegate could be non-judicial officer (eg. registrar).
2. Delegation must not be so extensive that judges no longer constitute the Court.
3. Must retain full review power (see previous notes on de novo hearing).
4. In permitting delegation by a State court, Commonwealth Parliament must not change the structure of State court.
5. Delegate must be part of the court structure established by State law.
 eg. the Commonwealth Act cannot authorise the appointment of a federal public servant to the State court for the purposes of the Act.
 Le Mesurier v Le Mesurier (1929) 42 CLR 481.
Prohibitory Rule 5
• State Courts cannot perform functions incompatible with the exercise of federal judicial power.
o Kable v DPP (1996) 189 CLR 51: NSW Act was directed at a named person, Kable. Court was asked to issue detain order if:
(a) the person (Kable) is likely to commit serious act of violence; or
(b) such detention is necessary to protect others.
o Held:
 The power to make the detention order makes the court an instrument of government policy.
 This undermines public confidence in the Court.
 NSW Supreme Court is a court vested with federal judicial power.
 State courts are parts of the integrated system of courts established by the Constitution.
o Retreat from Kable
 In Baker v Q (2002) 223 CLR 513 and Fardon v AG (2004) 223 CLR 575, the High Court approved State laws that gave power to State Courts to detain dangerous prisoners beyond their sentence periods.
 Key difference from Kable: the Acts do not name the prisoners but describes categories of offenders and circumstances that warrant further detention.
 Note that in the US, dangerousness alone is insufficient for further detention.
 In the US, further detention is permitted only on medical grounds and under conditions that provide for treatment.
Prohibitory Rule 6
• Judicial power that lies outside Ch III cannot be vested in High Court or federal courts.
• Re Judiciary Act (1921) 28 CLR 257
o Power given by s 88 to determine validity of laws referred by Governor-Geneal is outside Ch III.
o Allowed Governor-General to refer questions of the constitutional validity of an act to the HCA as to whether it is constitutional or not so government could amend or abandon it. The High Court was being thus asked to give its opinion on the validity of an Act before it had actually arisen. This was outside Ch III and could not be vested in the High Court.
o Another way this case could have been decided: there is no controversy, thus when the Governor-General refers an Act it is an advisory opinion and not a controversy. Thus it cannot be judicial power to begin with.
• Re Wakim (1999) 198 CLR 511
o State judicial power vested in federal courts under cross-vesting schemes is outside Ch III.
o Can State Parliament vest in federal courts state judicial power. There are some disputes where part of the dispute is governed by state law and the other part by Commonwealth law, thus giving rise to both state and Commonwealth power. Had to go to Commonwealth and state court. Example: family disputes (property as well as family matters arise in family disputes).
• Exception of accrued jurisdiction: Where federal and State law issues are involved in the same transaction and it is not possible to separate them: Fencott v Muller (1983) approved Wakim.
Prohibitory Rule 7
• Non-judicial powers cannot be vested in High Court or federal courts.
o Boilermakers’ Case
 Arbitration Commission was granted power to:
• make industrial awards (non-judicial);
• enforce awards when they are not observed (judicial).
 Held: it is not permissible to combine these powers in the same body.
The difference between State and Federal Courts with respect to non-judicial power
• State Courts: non-judicial power may be given to State courts to the extent that it is not incompatible with the exercise of federal judicial power: Kable, Fardon, Baker.
• High Court and Federal Courts: non-judicial power cannot be given to the High Court or federal courts unless it is incidental to the exercise of judicial power: Bond, Thornton, Davison.
• Practical difference: more non-judicial power can be given to State Courts than to Federal Courts.
• Until Kable,, the question did not arise with regard to State courts. After Kable, there was a limit to the amount of power given to State courts.
Prohibitory Rule 8
• No ex post facto laws imposing: retrospective punishment (bills of attainder – innocent act today becomes criminal and has retrospective effect).
o Polyukhovich v Commonwealth (1991) 172 CLR 501 (to be discussed in detail under constitutional rights). This type of law offends the separation of judicial and non-judicial power.
• No legislative judgements: US case of Calder v Bull (1798) 3 US 86.
• No legislative intervention in judicial proceeding.
• However, Parliament may invalidate rights in issue in court proceedings (Nelungaloo v Cth (1948 75 CLR 495).
• Executive Detention
o The High Court has held that non-punitive detention by the executive is not an exercise of judicial power.
o eg. migrants, detained for investigation, all non-judicial forms of detention.
o Al-Kateb v Godwin (2004) 208 ALR 124: The detainee was a stateless Palestinian who had entered Australia illegally and was detained. He was refused re-entry into Kuwait where he had lived a long time or into the Gaza strip. Thus, his detention was potentially indefinite.
 The Court by majority of 4:3 upheld the detention as being within the aliens’ power.
Prohibitory Rule 9
• Parliament cannot remove jurisdiction conferred by Constitution.
o Right to appeal to High Court under s 73 cannot be removed (Cockle v Isaksen (1958) 99 CLR 155).
o Original jurisdiction under s 75 cannot be removed. Lim v Minister of Immigration (1992) 176 CLR 1).
o Lim: s 54R of Immigration Act: ‘court is not to order the release from custody …’
The Case of Privative Clauses
• A privative clause limits the grounds on which an executive or quasi-judicial decision can be judicially reviewed.
• eg: ‘The minister’s decision shall not be questioned in any court of law’.
• A privative clause only saves a decision that is:
o is a bona fide attempt to exercise lawful power;
o relates to the subject matter of the legislation
o reasonably referrable to the power granted: Re Hickman (1945) 70 CLR 598.
• This kind of clause is restrictively interpreted to avoid conflict with the Constitution: Plaintiff 157 Case (2003) 211 CLR.
Privative Clauses and State Courts
• Can privative legislation take away the jurisdiction of State courts?
• State Supreme Courts have power to confine inferior courts to the limits of their jurisdiction by granting relief (usually by writ of certiorari) on the ground of jurisdictional error.
• Jurisdictional error is an error leading to the court exceeding its legal power.
• State Parliaments cannot deprive Supreme Courts of this power.
• This power is a defining characteristic of a State Supreme Court.
• NB: Courts acting without authority: jurisdictional error.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 566.
The Permissive Rules
Exception 1
• Persona designata rule
o Non-judicial power can be vested in a federal judge in his or her personal capacity (Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 184 CLR 348).
o Hilton and Grollo:
 upheld the grant of power to each Federal Court judge to authorise phone taps; and
 stated that the power was vested in the judges and not the Court.
o Grollo imposed two conditions:
 Consent condition: Need consent of judge unless it is incidental to judicial power.
 Compatibility condition:
• (a) compatibility with judge’s capacity to perform further judicial functions (time factor); and
• (b) compatibility with court’s responsibility: confidence should not be undermined (confidence factor).
o Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1
 A Federal Court judge was appointed by name inquire and report on whether a land should be declared a sacred site.
 The final decision was with the minister.
 Held: Not compatible with judicial function as the judge acts as the agent of the minister. (Judge was just making an enquiry and reporting to the Minister.)
 NB: Appointments to Royal Commissions are not incompatible as the commissioners must act independently.
Exception 2
• Judicial power in relation to service (military) offences may be exercised by military courts (courts martial)
• Reason: It is judicial power outside Ch III.
• This power cannot be given to courts.
• Same act may be a ‘service offence’ and a ‘civil’ offence. The latter is triable by a Ch III Court.
• Two theories concerning what a ‘service offence’ is:
o Services status theory: Offence triable by court martial if committed by a service person even if it does not concern military discipline.
o Service connection theory: Offence triable by court martial only if it is connected the purpose of maintaining military discipline.
• A majority of judges have embraced the service connection theory (Re Tracey (1989) 166 CLR 518; Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308).
• The test of connection ill-defined. In Alpert, the offence of rape committed while on recreational leave was held to be triable by court martial.
Exception 3
• Parliament may exercise judicial power over its own privileges.
• Under s 49, Parliament may declare its own privileges.
• Parliament has enacted the Parliamentary Privileges Act to declare these privileges.
• Parliament historically exercised the power to punish contempts (offences) against parliament (exercise of judicial power).
• This power was upheld in Re Richards: Ex parte Fitzpatrick and Browne (1955) 92 CLR 157.
Exception 4
• Courts may make rules of procedure.
o This is legislative in characters.
o However, it is considered part of the power of courts to regulate their own procedure.
o Historically, this power belonged to the superior courts.
o Authority: obiter of Q v Davison (1954) 90 CLR 353.