Keyzer Chapter 11 Notes

Introduction
=== Separation of Judicial Power === Constitution Chapter 1 – the parliament, ss 1-60 Constitution Chapter 2 – the Executive, ss 61-70 Constitution Chapter 3 – the Judicature, ss 71-80 S71 – judicial power vested in Federal Supreme Court (i.e., HCA) and in other federal courts the Parliament creates, and in other courts (i.e., state courts) as it invests with federal jurisdictionWilson v Minister for Aboriginal and Torres Straight Islander Affairs (1996) HCA discusses the separation of powers, check and balances et cetera. Courts quell justiciable controversies between parties.

Only Ch III courts can exercise Ch III power
By s 71 only Ch III courts can exercise Ch III power, and can only exercise Ch III power. (Wheat Case (1920) 20 CLR 54). In Wheat Case the Interstate Commission was not a Federal Court, therefore couldn’t exercise Ch III powers.

Ch III courts cannot exercise non-Ch III power
Conciliation and Arbitration Act (1904) Cth, which created Commonwealth Court of Conciliation and Arbitration (CCCA). CCCA had power to conciliate and arbitrate industrial awards, by s 51 (xxxv) Const, and judicial power to enforce breaches, and to punish for contempt of court.Boilermakers Case R v Kirby (1956) 94 CLR 254, Boilermakers found in contempt and fined, challenged the validity of the CCCA on the grounds it exercised judicial and executive power. HCA and Privy Council found that the Court couldn’t exercise non-Ch III power. Govt split CCCA into two – AIRC, which could make awards (i.e., executive power) and Commonwealth Industrial Court with judicial power to determine questions of law.

=== Administrative functions that are incidental to the exercise of judicial power === Ch III courts can have auxiliary powers incidental to their judicial function. S 51 (xxxix) allows parlt to make law wrt matters incidental to the exercise of power by the Judicature, see Solomons v District Court of NSW (2002) 211 CLR 119. In Harris V Caladine (1991) 172 CLR 84 HCA said that courts can delegate some judicial tasks to non-judicial officers, as long as the judges of the court retain effective control of their power. Practically the judge must be able to review or hear an appeal to the decision.

Exceptions to separation of powers
Public Service disciplinary tribunals set up under s 52 of Const do not offend separation of power. R V Whyte (1963) 109 CLR 665 Courts martial, R v Bevan (1942) 66 CLR 452 etc Parlt. may commit for contempt R v Richards (1954) 92 CLR 157

=== Judicial Tenure, Remuneration and Independence === S72 defines conditions Retire at 70 Appointed and sacked by GG (acting on advice of cabinet to appoint, parlt. must pray for the judge to be sacked) Salary set by parlt. Security of Remuneration Only be provided by an open determination, and not be limited by time

Chapter III judges must have s 72 tenure, and judicial power may not be exercised by a court whose members do not enjoy s 72 tenure
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434. CCCA issued a summons on insistence of WWF to Alexander for being in breach of an industrial award. Alexander challenged validity of the court to exercise executive and judicial power (enforcing awards was a type of judicial power). Also, the president of the court did not enjoy life tenure under s 72. HCA agreed

Territory Courts are not Ch III courts, so their members need not enjoy judicial tenure
Kable is mentioned here; come back and review it.

Extra-Judicial Assignments
The ‘persona designata’ rule: Ch III judges may be appointed to undertake Ch II tasks e.g., Royal Commissioner, issue warrants Designated person means the judge is acting as a member of the executive branch exercising Ch II power, see Hilton v Wells (1984) 157 CLR 57. HCA held that power was being vested in the judge in a personal capacity, according to the statute.

The incompatibility condition
Grollo v Palmer and Wilson v Minister for Aboriginal & Torres Strait Islander Affairs concerned validity of judges issuing warrants. Did doing so undermine the integrity of the judicial branch? The test, according to the HCA, was whether the judge consented to do so, and whether it affected their ability to discharge their judicial duty, and whether it affected the court’s ability to function. This can only be decided on a case-by-case basis. In these cases the HCA found that issuing warrants was not incompatible.

The incompatibility condition and the tradition of the ‘judicial enquiry’
In Wilson v ATSIA (1996) 189 CLR 1, the Minister appointed a Federal Court judge to conduct an enquiry and prepare a report pursuant to legislation. The Minister would then consider the report and whether it should be implemented. Considering Mistretta (1989 488 US 361) the HCA was cautious about endorsing the Minister’s action. However the majority decided that as the statute left the decision to the Minister it was constitutionally acceptable. Kirby J dissented.

How should ‘judicial power’ be defined?
Historical approach uses traditional understandings of judicial power Analytical approach discerns the essential characteristics of judicial decision-making Functional approach is whether the relevant powers have been vested in the court Multiple approaches can be applied to a single case

Judicial power at 1900
See Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469

Some powers historically regarded to be judicial may now be vested in non-judicial tribunals
R v Quinn (1977) 138 CLR 1 – General Registrar of Trade Marks vested on the application of an aggrieved person to remove trade marks from the register – judicial power? HCA said yes, therefore provision was invalid.Rule of law, independent judiciary and separation of judicial power are basic rights in Australia. Judiciary determines the availability of the basic rights by judicial review. Courts can also govern criminal trials and the power to determine legal rights While not every power which is traditionally ‘judicial’ will be regarded as such today, a determination of legal rights is exclusive to the courts.

Other powers are exclusive to courts
1. Judicial review of legislative and executive action Australian Communist Party v The Commonwealth (1951) 83 CLR 1; Marbury v Madison 1 Cranch 137 (1803) 2. Power to adjudicate on existing legal rights between parties WWF v J W Alexander 3. Power to determine criminal guilt is exclusive to the courts (Re: Tracey; Ex parte Ryan (1989) 166 CLR 518 Separation of judicial power guarantees that Ch III courts will not take instructions from the Legislature regarding how their jurisdiction will be exercised, or the result of a case Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Kable v DPP (NSW) (1996) 189 CLR 51.

Ch III courts enjoy particular implied or inherent powers that are incidental to judicial activity
Ch III courts can define these powers, and they should do so to fulfill their constitutional purpose to afford all persons the protection and justice of the law. (Nicholas v The Queen (1998) 193 CLR 173) Refuse to exercise its jurisdiction where to do so would be contrary to the law or would sanction fraud or oppression, or would permit abuse of process Pasini v United Mexican States (2002) 209 CLR 246 Power to compel the appearance of persons WWF v JW Alexander Power to commit for contempt of court R v Colina; Ex parte Torney (1999) 200 CLR 386 – a power of self-protection incidental to the function of superintending the administration of justice

The power to order judicial remedies
This power is entrenched by s 75(v) and by s 75(iii). In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476: -   power to grant relief under s 75 (v)  where there has been jurisdictional error by an officer of the Commonwealth cannot be removed by Parlt. -   The judicial power of the Cth can only be exercised in accordance with Ch III -   Parlt. Cannot confer on a non-judicial body the power to determine the limit of its own jurisdiction i.e. Parlt. Cannot remove the HCA’s power to determine that an administrative tribunal has exceeded its jurisdiction because that would be an exercise of judicial power, see R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415. Judicial remedies available under s 75 (v) include mandamus (‘we command’), prohibition and injunction – can be ordered when an officer of the Cth has breached the rules of natural justice, see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82. Injunctions can extend to enable orders preventing Cth bribe, fraud, dishonesty or other improper purpose, see Plaintiff S157/2002 Remedy of certiorati (‘to be informed’) is possible under s 75 (iii). i.e., the HCA can order that a matter in a lower court or tribunal be brought before it to determine whether it should be quashed for an error of law or jurisdictional error. Traditionally the common law courts exercised a power to issue a writ of habeas corpus (‘show me the body’) to determine whether a person had been lawfully detained, see Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

Breadth of remedial powers
As long as powers are conferred by Parlt consistent with Ch III requirements, the Parlt may confer power to make order that create legal rights or impose liabilities, see Precision Data Holdings Ltd v Wills (1991) 173 CLR 167. See also R v CCCA; Ex parte Barrett (1945) 70 CLR 141 (don’t quite understand the legal reasoning). Example of judicial power to adjust contractual rights that have been determined to be ‘inequitable or unduly onerous’: Peacock v Newtown Marrickville and General Co-op Building Society No 4 Ltd (1943) 67 CLR 25.

The analytical approach to judicial power
As well as using the historical approach, sometimes it is necessary to supplement it with an approach that emphasizes the legal effect of a decision. See Huddart Parker Pty Ltd v Moorehead (1909) 8 CLR 330. This case tested whether the Australian Industries Preservation Act (an IR law) was constitutionally valid. The Act provided for the Comptroller-General of Customs to require companies to answer questions in relation to alleged offences and to impose (though not enforce) a penalty in default. The provisions were challenged on the basis they provided judicial power to a non-judicial body. The court held that the provision was incidental to the administration of the Act. Griffiths CJ said judicial power is power used to settle controversies between parties. The power does not begin until some tribunal, which has the power to give a binding, and authoritative decision is called upon to take action.

A binding decision
Non-judicial tribunals can adjudicate disputes relating to legal right and obligations, but the power to make a binding decision is exclusively judicial. Binding means enforceable. This was confirmed in Brandy v HREOC. HREOC could register its decisions with the Federal Court for determination. The determination would automatically become a judgment that would be effective if the respondent did not appeal within a certain time limit. The HCA said that the provisions creating the HREOC were invalid because they purported to give a registered determination effect as if it was an order of the Federal Court.

An authoritative, conclusive decision
Authoritative means conclusive, i.e., not subject to appeal. Only a court can make a conclusive decision: Luton v Lessels (2002) 210 CLR 333. Non Ch III bodies can make decisions affecting legal rights, but not the power to make conclusive decisions. See also Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530. Taxation Board of Review was a statutory body with power to determine questions of fact and law wrt taxation determinations. It was argued that this was an exercise of judicial power by a non-Ch III court. However the Privy Council said that the distinction between the Board and a court was the ability to make a ‘convincing decision’, therefore the Board was not unconstitutional. See also Sue v Hill (1999) 199 CLR 462. A non-Ch III body may act judicially so long as the statute provides for a conclusive determination.

Controversies regarding rights relating to life, liberty or property – the distinction between questions of fact and questions of law
In modern decisions the court has used ‘question of law’ to define the type of questions which fall within the exercise of judicial power. Non-Ch III bodies can form opinions, and make decisions on opinions, but cannot make binding and conclusive determinations. In Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 the HCA said the Coal Industry Authority had determined the claim for wages owing as a ‘matter of legal right’, which meant it had exercised judical power.

Questions of fact
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361: a power to identify a restrictive or deceptive trade practice and make a determination whether the practice was against the public interest did not involve an exercise of judicial power. Windeyer J said adjudication of a matter in this case was incidental to administrative function. It was ‘an incidental and preliminary enquiry’.

Judicial review of non-judicial determinations of fact
Rola Company (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 – whether judicial power can be used to review determinations of fact by non-judicial tribunals. Women’s Employment Board was empowered to decide whether women could be employed in certain industries, and the terms of their employment. Decisions were effectively an award or order of the CCCA after filing with the Court. Decisions of the Board were purported to be binding. The Board’s power to make binding determinations was challenged on the basis that the questions it determined were identical to issues that a court might have to decide on in prosecution of an employer who failed to comply with a decision of the Board. Therefore the argument went the Committee was exercising judicial power if the finding created legal liability. However the HCA said that as long as the courts retain the power to review the decisions of the Board, it was not an exercise of judicial power, therefore they rejected the argument.

Only a Ch III court can make a final determination of mixed questions of fact and law
In British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 the case concerned the validity of provisions of Federal income tax legislation that created a Taxation Board of Appeal and gave it the power to determine appeals. The Board could determine questions of fact and of law with the decisions on fact being conclusive, even if the determination could be appealed on the basis of law. The provisions were found to be constitutionally invalid in that they vested judicial power in a non-Ch III court (questions of law could be determined, even though they could be appealed).

Administrative and judicial bodies may engage in the same tasks – the distinction is based on the purpose for which the powers have been exercised
R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628 Mason J said a function takes its character from that of the tribunal in which it is reposed. If a function is given to a non-judicial tribunal it is inferred that no exercise of judicial power is involved. Precision Data Holdings v Wills (1991) 173 CLR 167 – a corporation and securities panel had the power to declare certain share trades unlawful under the legislation. The panel could also issue discretionary orders to protect those affected by the transactions. The HCA held that this was non-judicial conduct for the following reason: If the object of the adjudication is not to resolve a dispute about existing rights but to determine what (new) rights and obligations should be created, then the function stands outside judicial power.

Are there any powers that may not be vested in a court? The distinction between legal decisions and policy decisions
As the Court indicated in Precision Data Holdings, one difference between administrative power and judicial power is the way in which policy considerations can arise and affect decision-making. So therefore any discretionary authority can be conferred on a court as long as the court resolves it by an objective standard or test and not by reference to anything else but legislation, it constitutes and exercise of judicial power. OTOH, if legislation vests a tribunal to regard policy decisions in making a decision, the body is not exercising judicial power. The extent to which judicial power depends on objective standards or tests was considered in R v Spicer; Ex parte Australian Builders and Labourer’s Federation (1956) 100 CLR 277. The Cth Industrial Court was allowed to make discretionary orders disallowing union rules, having regard to policy and law. This power was vested in the Court after the break-up of the CCCA after the Boilermakers’ case. The HCA struck down the provision. Dixon CJ said the power to commit for contempt involved an exercise of judicial power involved the exercise of judicial power where the court acted of its own volition, but this was a special case. The fact that the power gave a complete discretion based wholly on industrial or administrative consideration indicated that it was outside judicial power. See also R v Spicer; Ex parte WWF of Australia for a similar result. This is consistent with Windeyer J’s remarks in R V Trade Practices Tribunal – the nature of the power takes its character from the jurisdiction of which it is a phase.

Judicial power is characterized by the conclusive ascertainment of existing rights and obligations, rather than the determination of what legal rights and obligations should be created
Temporal quality of judicial process: -   decisions wrt existing legal rights are usually judicial -   decisions wrt future legal rights tend to be legislative or executive Many examples of this: e.g., Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Worker’s Union of Australia (1987) 163 CLR 656 In Precision Data Holdings the HCA considered the possibility that Ch III courts might be vested with jurisdiction to make orders creating rights or imposing liabilities. They found that this would be outside the realm of judicial power. The court still has the power of remedy, but it cannot legislate. The corollary of this is that the HCA cannot overrule a constitutional decision with prospective effect only. See Ha v NSW (1997) 189 CLR 465. The Court pointed out the problems in prospectively overruling cases prospectively – if the earlier case is erroneous and it is necessary to overrule it, it would be a perversion of legal power to maintain that which is acknowledged not to be the law. Especially so where non-compliance with a properly impugned statute exposes a person to criminal prosecution.

If there is no Bill of Rights, do any implied rights exist as a consequence of the separation of judicial power and the requirement that judges act in accordance with the judicial process?
Wilson v Minister for ATSIA (1996) 189 CLR 1 at 11: HCA said separation of judicial function advances two constitutional objectives: guarantee of liberty and the independence of Ch III judges. Therefore there are implied rights enjoyed by people participating in the judicial process: rights are determined by a judiciary independent from parlt and executive. The judiciary’s governance of a trial for the determination of criminal guilt is an example of judicial independence.

Implied rights arising from the exclusive power of the courts to determine exclusive criminal guilt
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1: HCA said adjudgement and punishment of criminal guilt is essentially judicial in character. Ch III of the Constitution precludes the enactment in pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive. It is beyond the legislative power of the Parliament to invest the executive with an arbitrary power to detain citizens in custody notwithstanding that the power was sought to divorce such detention from both punishment and guilt. With very limited exceptions, the detention of a citizen in custody by the State is penal or punitive in character and only exists as an incident of exclusively judicial function. “Every citizen is ruled by the law, and by the law alone” “A citizen may be punished for a breach of law, but he can be punished for nothing else” The exceptions are limited to: -   arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. This detention is not punitive or exclusive to judicial power. The power to detain a person awaiting trial is subject to the supervisory jurisdiction of the courts including the provision that the person be admitted to bail. -   Involuntary detention in cases of mental illness or infectious disease are not punitive, and not necessarily involving the exercise of judicial power -   Traditional powers of parliament to punish for contempt -   Military tribunals to punish for breach of military discipline Otherwise a citizen enjoys a constitutional immunity from being imprisoned by the Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

The judicial power of the Commonwealth is infringed by legislation, which purports to remove the power of a Ch III court to make a determination of criminal guilt before incarceration
HCA has expressed the view from time to time that the separation of judicial power removed the power of the legislature to enact a ‘bill of attainder’ – a law which automatically declared the guilt of a person and subjected them to punishment. See: Polyukhovich v The Queen (1991) 172 CLR 501 at 539, 612, 686, 706-7, 721 Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 at 27,70 Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51 There have been numerous attempts to apply Kable’s case: Bachrach (HA) Pty Ltd v Queensland (1998) 195 CLR 547: attempt to argue that Kable prevents State Parlts from enacting legislation changing rights at issue in pending litigation – apparently this was a well-established power of state parliaments Silbert v DPP (WA) (2004) 78 ALJR 464: WA legislation deemed a person who died before a criminal charge had been determined could be taken to be convicted for the purpose of confiscating their criminal proceeds. Court rejected the argument that it infringed Kable, as the legislation required that the forfeiture would only occur if a court could be satisfied beyond reasonable doubt that the person was guilty. Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519: significantly qualified Kable - the majority of the HCA upheld the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which authorizes the Supreme Court of Queensland (a Ch III court) to incarcerate a person in prison after the expiry of their term if the court predicts that the person would be a danger to the community. This is a departure from the traditional approach – it appears to establish that a person can be punished twice for the original crime.

The separation of powers and the rules of evidence and burden of proof
Parlt can regulate the fact-finding exercise leading to a conclusion of guilt, and may have the power to reverse the onus of proof – see Nicholas v The Queen (1998) 193 CLR 173. Nicholas challenged the constitutional validity of amendments to the Federal Crimes Act 1914, which required courts to determine the guilt of persons charged with importing narcotics. It was argued that to remove judicial discretion to disallow evidence on the basis it was unfairly obtained usurped judicial power and was therefore unconstitutional, HCA by majority rejected the argument, held that parlt can prescribe what evidence may be used in judicial proceedings (The Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12) and perhaps even regulate the burden of proof (Williamson v Ah On (1926) 39 CLR 95 at 122) and this will not usurp judicial power

The parliament can change statutory right at issue pending litigation
Commonwealth can legslate with prospective and retrospective effect: R v Kidman (1915) 20 CLR 425; R v Humby; Ex parte ? (1973) 129 CLR 321 Parlt can criminalise conduct retrospectively: Polyukhovich v Commonwealth (1991) 172 CLR 501 Parlt can change statutory rights at issue in pending litigation: Australian Building Construction Employees & Builders Labourers’ Federation v The Commonwealth (the BLF case) (1986) 161 CLR 88. BLF challenged the validity of legislation cancelling the registration of the BLF and excluding them from registering under the Conciliation and Arbitration Act 1904 (Cth). They said the legislation was not a law wrt conciliation and arbitration within s 51 (xxxv) and involved an interference of judicial power of the Commonwealth. However the HCA rejected the argument: The BLF argue that as the matter of their deregistration would otherwise have been decided by a court, the Cancellation of Registration Act is an exercise of judicial power. It is established that parlt may legislate to affect and alter rights at issue in pending litigation without interfering with judicial power. HCA: “Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action” In Bachrach (HA) Pty Ltd v Queensland (1998) the Qld parlt passed legislation to prevent the construction of a shopping centre, which affected a pending case in the Qld Court of Appeal. The HCA held the law did not affect the judicial independence of the court. Exception to this rule – parlt cannot pass legislation with retrospective effect if that would deny s 109 wrt past inconsistency of laws – see University of Wollongong v Metwally (1984) 158 CLR 447.

Chapter III courts must exercise their functions in accordance with principles of natural justice
Common law requires a right to a fair trial, free from bias. The measure of the rights depends on the circumstances of the case (Kioa v West (1985) 159 CLR 550), the degree applied will be consistent with the significance of the right or interest at stake. A breach of the requirements for natural justice can be cause for judicial remedy under s 75 (v), see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, Mansour Aala applied to migrate to Australia for fear of persecution if he returned to his native country, Iran. Aala was unsuccessful. He then -   appealed to Refugee Review Tribunal, and lost -   appealed to the Federal Court, and lost -   appealed to the High Court for a writ of prohibition under s 75 (v) Consitution to prevent his deportation HCA said if the delegate of the Minister denied procedural fairness to Aala, and the legislation had not validly extinguished any obligation to accord procedural fairness, then the remedy of prohibition could be ordered under s 75 (v) at the discretion of the court. The ambit of the constitutional requirement of natural justice depends on the willingness of the HCA to assert its importance in the exercise of judicial power. In Aala, Hayne J said “s 75 (v) is not a source of substantive rights”.

There is no implied constitutional right to a fair trial?
Dietrich v The Queen (1992) 177 CLR 292, HCA recognized a constitutionally entrenched right to a fair trial. Dietrich was charged with importing a large amount of heroin into Australia. He was denied legal aid. He applied for a review of his application and was denied. Asked Minister for Justice and Att-Gen for assistance and was denied. Went to trial, asked for adjournement, failed, and was convicted. Application for leave to appeal to the Victorian Criminal Court of Appeal was rejected. Asked for special leave to appeal to the HCA. Majority of the HCA ruled he had a common law right to a fair trial. HCA said there was an implicit requirement in the Constitution that judicial power should be exercised in accordance with the judicial process. It may be considered that the HCA’s right to issue writs under s 75 (v) may be considered as a guarantee of the right to a fair trial.

Is Ch III justice ‘open justice’?
Re Nolan; Ex parte Young (1990) 172 CLR 460 Gaudron J: “the judicial process included ‘open and public enquiry (subject to limited exceptions) (and) the application of the rules of natural justice”.

Is there an implied constitutional right of equality?
Probably not relevant to Part A of the tutorial.

The interrelationship of rights implied by the separation of judicial power and the constitutional guarantee of trial by jury in s 80
Removal of the privilege against self-incrimination is not an unconstitutional abrogation of juidicial power, see Sorby v The Commonwealth (1983) 152 CLR 281.