Judiciary

Question 1

Boilermakers

Answer 1

Ch III courts restricted to judicial powers, and incidental and non-judicial powers

Did not comply with s 72 (Tenure), Ch III did not allow for Chapter III does not allow powers that are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth.

Important step in the separation of powers

Question 2

Kable v DPP

Answer 2

Kable doctrine: As constitution establishes an integrated Australian court, states may not legislate to confer powers on state courts which are repugnant/incompatible with the exercise of judicial power of commonwealth

Question 3

Huddart Parker & Co v Moorehead

Answer 3

Necessary power of sovereign to decide controversies, whether rights of life liberty or property. Doesn’t start until tribunal with power to give a binding an authoritative decision is called upon

Question 4

Marbury v. Madison

Answer 4

US case, established that courts are required for judicial review to enforce rigid constitution

Question 5

Hilton v Wells

Answer 5

Persona Designata: A judge, rather than a court, may be given non-judicial powers, provided that the appointment is consensual and not inconsistent or incompatible with judicial independents

Question 6

Persona Designata examples

Answer 6

Wilson v Minister - Powers of reporter to minister, investigating and advising, incompatible with judicial office

Grollo v Palmer - I) So permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable . o II) The performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. {{[“Objectively”] compromised or impaired}} o III) The performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished

Question 7

Constitution of Queensland courts

Answer 7

• 58 Supreme court has all jurisdiction necessary
  
  • 59 appointed by governor general
  • 60 tenure ‘indefinitely’
  • 61 removed for misbehaviour or incapacity only if proved by tribunal of former judges accepted by legislative assembly on balance of probabilities
    62 remuneration cannot be decreased

Question 8

How may a court be considered a state court:

Answer 8

Owen v Menzies - 	- It is a court as it
		○ Independent tribunal
		○ Resolving disputes
		○ Court f record
		○ Decisions are binding and enforceable
		○ Hearings are public
		○ Gives reasons
Subject to appeal

Question 9

Wheat Case

Answer 9

Separation of powers structurally implied, s 71 ‘vest judicial power in courts’ and nowhere else, adjudication not like s 73 judicial power

Question 10

Wainohu v NSW

Answer 10

Character of court; ○ Appearance and reality of independence and impartiality
○ Application of procedural fairness and adherence
○ Open court principle
Gives reasons for decision

Question 11

Alexanders case

Answer 11

Power to enforce awards, being convictions for offences and the imposition of penalties and punishments, are matters appertaining exclusively to judicial power