10.1 Separation of Federal Judicial Power
(p594)Principle – the constitution specifies that judicial power of Commonwealth cannot be vested in any tribunal other than a Ch III court.
R v KIRBY, Ex Parte Boilmakers’ Society of Australia (BOILMAKERS’ CASE) – p 599 Facts
The metal Trade Employers sought to enforce a non-strike clause in an award. The Arbitration court (also had non judicial power) made an order requiring the Union to comply with the award and a further order claiming the union of contempt of court for disobedience to an earlier order. The union sought to obtain an order nisi from the HC to claim the Arbitration court could not write such a prohibition.
Issue
Can courts exercise both judicial and non judicial powers simultaneously?
Held
Vesting of judicial powers in a body also exercising non judicial power is unconstitutional, because they can never be mixed up.
Arbitration court is designed as a arbitral tribunal (non judicial) and this we cannot combine it with functions strictly part of judicial powers.
Rationale
The Doctrine of SOP
1 ChIII courts can only exercise judicial power 2 Judicial power can only be vested in CHIII courts.
Basis for SOP
1. Logical structure of constution CH1-3
2. Ch III takes great lengths to detail the body that exercise cth judicial power & extent of it. It is apparent that allowing foreign powers to be attached to such a court cannot be intended.
3. Ch III Courts are the ultimate umpires they have an important role in the federal system. Hence they should be isolated from the executive and legislative.
4. S51 (xxxix) – express mention of one excludes the other Outcome
Court was invalidly construction thus all judicial decisions were invalid
Court was split into 2 court of conciliation and arbitration commission.=
Arbitral decisions were fine because it was held to be a non judicial body
Legislation was later passed deeming judicial decisions of the new court.
Criticism of the Boilmakers Case & is it necessary? (p603)
R v JOSKE (1974) –
p603 Held
Barwick CJ - conclusion from Boilmakers case was unnecessary for the effective working of the Australian constitution or for the maintenance of the separation of judicial power or for the protection of independence of courts exercising that power.
This exception has allow courts to be vested with wide-ranging powers. Powers such as reorganising unions and invalidating union rules were allowed to be exercised by a Chapter III court.
However it is very unlikely that boilmakers’case will be challenged because there is a different emphasis on the principle it showed (p606)
o Boilermaker’s initial argument – was to keep judicial away from political power so to prevent political contamination of judicial to keep them independent
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o Current argument – the rationale of the case can now be explained that the court is treated as the symbol of individual liberty implying their role in the constitution has more to do with protection of individual freedom rather than federal distribution of power. This rationale being wider is harder to overrule.
R v QUINN Held
Jacob J notes that the constitution protects our rights by ensuring that only a
judiciary which is independent from parliament and the Executive can determine our rights.
10.2 Defining Judicial Power
(p606)There is no exhaustive definition of judicial power as many of its functions overlap between administrative and judicial powers. Below are some indications of judicial power but they are not decisive but rather we have to weight the indicia found in the present against other indicia that are absent or against indicia of the contrary.
(R v QUINN p608)
Some indication by case law
HUDDART, PACKER AND CO v MOOREHEAD – p606
Griffith J held that judicial power is the “power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself & its subjects whether the rights relate to life, liberty or property.
R v DAVISON Chameleon Doctrine: Some powers if invested in administrative body then it is an administrative power, if invested in federal court then it is a judicial power.
R v TRADE Practices
Tribunal (197) – p606 Kitto J held that judicial power was a decision settling for the future, as between
“defined” person or classes of person (i.e. someone in particular), questions to the existence of a right or obligation, so that exercise of power creates a “new”
charter for reference, to which will be used for the “future” (i.e. binding obligation)
Kitto J – fairness and detachment
What does Judicial Power consist of? (Blackshield – p608)48
Judicial power is controlled power based on existing law base on authoritative legal material: rules, principles, conceptions, standard applied must be drawn from existing laws. However the legal material must leave the judges some room for independent interpretative judgement.
BUT what exactly is the standard?
Standards such as “equity and good cause” applied subjectively by judge
BLF case was seen as judged by “what one may call an industrial discretion as than to provide legal standard governing a judicial decision”.
Tasmanian breweries – “contrary to public interest” is not sufficiently justiciable standard as it is more do with “law making than to adjudication according to existing law”.
Tightened legislation often leave judges no room for choice.
LIMITATION placed on judicial power
Cannot act upon unrelated facts, must act upon circumstance of case
48 The Law
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Cannot embark on action on its own initiative but must wait until claim brought to them to decide issue
“controlled” attention to fact/law i.e. not what a judge thinks he should deliver but what the court should deliver (brennan J)
limits on consideration a court is allowed to take int o account e.g. irrelevant matter with no rationale connection to policy legal material but merely of personal expression is not to be brought into the adjudication process. (TAGLA v MBC INTERNATIONAL)
Difference between Federal Jurisdiction and Federal Judicial Power The two are not the same but are different aspects of the same issue.
federal judicial power concerns the manner in which legal disputes are heard and disposed of
federal jurisdiction relates to the subject matters in respect of which authority to determine those disputes has been granted.
The one is a necessary concomitant of the other, in that neither can operate in isolation. The degree to which that interrelationship imposes limits on the grant and exercise of federal jurisdiction is what concerns us in this section49
Federal Jurisdiction Federal Judicial Power
S73 (appellate jurisdiction)
S75 &76 (original jurisdiction)
S51 (xxxix) matters incidental to any power vested in the Federal Court
Only exercised by ChIII courts
Judicial power ( indicia – none are decisive)
Resolves controversies btwn parties
Decides legal rights and obligations
Its binding and authoritative o Fairness and impartiality o Reasoned/principled
Decides existing rights b applying a legal standard – doesn’t create new rights
Characteristics of the body/Chameleon Doctrine o If powers invested in administrative body
then it is a administrative power, if invested in federal court then it is a judicial power.
Some powers by their nature (e.g. criminal punishment)
10.3 Exceptions to the Boilermakers’ Case – Person Designata Rule
Importance of the Persona Designata Rule
The personal designata rule confers non-judicial functions to individuals with capacity who happen to be judges which clearly severs the relationship between the judge as an individual and his/her position uphold.
(HILTON v WELLS)
Why?
1. Manoeuvre around the Boilermakers’ case
49 http://www.austlii.edu.au/au/other/alrc/publications/bp/1/federal.html
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2. Utilises the judge’s experience since if we are to assign this level of discretion it is better to leave it in the hands of judges because of their assumed impartiality.
3. Clothe executive action in judicial robes. cover up?
HILTON v WELLS (1985) – p623 Facts
Federal police alleged for bribery and corruption in an inquiry but evidence was obtained by telephone tapping.
Warrant to do so was issued by a judge un s20 Telecommunications (inception) Act 1979
Argued to be unconstitutional because it conferred non-judicial power on Federal Court.
Reasoning
S20 refers to “a judge” which is a designated person so it is unlikely that parliament intended to refer to other cases to confer power on court.
Held (Gibbs CJ,Wilson & Dawson JJ)
if power by statute is conferred on the individual rather than the court i.e. the judge then exercise of such power will be deemed valid.
Nature of the power conferred is of importance.
o If power is judicial, it is likely to be exercised by the judge by virtue of the character.
o If power is administrative and not incidental of the exercise of judicial power, it is likely that it was intended to be exercised by the judge as a designated person.
Federal courts have original jurisdiction but s20 Telecommunication Act doesn’t express an intention to invest the court with jurisdiction. Hence judge making warrant is a designated person dependent on the act.
Outcome
If the nature or extent of the function designated to judges conflict with their performance of judicial functions then principles of boilermakers case and the legislation will be invalid. However s20 does not do so and so is valid.
Principle – Incompatibility Doctrine
A judge may not perform the role when the role was incompatible with him/her even as a persona designate.
(GROLLO v PALMER).
GROLLO v PALMER (1995) – p626 Facts
Since 1987 amendments Telecommunication (inception ) Act 1979 made it clear that function was
designated to judges as individuals the present case considered the compatibility of criminal investigation process with judicial office even for persona designata role.
Issue
Whether the idea of persona designata should be abolished to maintain the integrity of Boilermakers’ case (i.e. judicial and administrative powers must be kept separate).
Principles
Qualifications on persona designata rule