Part B Answer

Ch III of the Commonwealth Constitution, entitled The Judicature, installs judicial power in the federal courts, namely the High Court of Australia and those that are delegated federal jurisdiction. Ch III also demands that the courts must act in accordance with natural justice. The courts must provide a fair hearing that is free from bias for all who come under the judicial system. It is noted in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs that through the doctrine of separation of judicial power, the courts must act in accordance with the principles of natural justice. This is further seen in Leeth and the Commonwealth. The idea of separation of powers is examined in whereby the judicial arm of government is separated from both the Executive and Legislative branches. However, the separation of powers doctrine does not generally apply at a state level. According to Kable doctrine it is unconstitutional to undermine the integrity of state courts with federal jurisdiction. The principle is based upon separation of powers and judicial independence. The case concerned the validity of the Community Protection Act 1994 (NSW) and whether it was compatible with the independence and integrity with a state court that had been vested with federal jurisdiction under Ch III of the Constitution. Gaudron J stated that ‘Ch III  involves a constitutional requirement that the states maintain courts apt to exercise the judicial power of the Commonwealth.’ Therefore the states are unable to legislate as they see fit. In the case of Kable, the vesting of non-judicial power in a state judge was challenged, therefore asserting a separation of judicial power. In the case of Gypsy Jokers Motorcycle Club Inc v Commissioner of Police, the constitutional validity of s76 (2) of the Corruption and Crime Commission Act 2003 (WA) was questioned. Mr D Grace QC for the appellant, stated that Supreme Courts must be ‘independent of their own State’s legislature and executive as well as independent of the federal legislature and executive.’ In this instance, Mr Grace argued that the Supreme Court of Western Australia was not entirely independent and therefore was in breach of Ch III of the Commonwealth Constitution. The case, on appeal from the Supreme Court of Western Australia, concerned the power to disclose certain information from the court if it was deemed by the Commissioner to prejudice the proceedings. The appellant was questioning whether or not s76 (2) was disregarding the separation of powers are therefore not in accordance with natural justice. The Supreme Court of Western Australia exercised executive control by allowing the admission of restricted evidence. Ch III of the Commonwealth Constitution, headlined The Judicature, puts measures in place for the separation of judicial powers from the other arms of government. This independence does not take place at state level. The independence of the Judiciary is paramount in providing natural justice to the people. The common law notion of natural justice does not appear in either Commonwealth or State constitutions however it is the basis of providing a fair and just legal system to the people. This procedural fairness is bought about by providing an independent justice system that is not pressured or obligated to the executive. In countries such as Bangladesh, this system is not in place meaning that the government is subject to corruption and misuse.

What does the court say about allowing secret evidence in some situations? What safeguards to provide a fair trial do the majority justices say? Is their reasoning convincing? In some circumstances do we need to keep evidence a secret? What additional safeguards might we need?

Acts cited: •   Community Protection Act 1994 (NSW) •   Corruption and Crime Commission Act 2003 (WA) Books cited: Cases cited: •   Kable v Director of Public Prosecutions (1996) 189 CLR 51 •   Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 234 CLR 534 •   Leeth and the Commonwealth (1992) 174 CLR 455

•   Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1