T9.1 - Overview of Judicial Power & HCA

Question 1

s 71 Const

Answer 1

Judicial power and Courts:

• • Judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction
• • HCA shall consist of a Chief Justice & no less than 2 justices as parliament prescirbes

Question 2

s 72 Const

Answer 2

appointment, tenure and remuneration

Question 3

Appointment, tenure and remuneration of judges in Const - specifics!

Answer 3

s 72

• appointed by GG
• removed by GG for misbehaviour or incapacity
• fixed remuneration whilst in office (can’t be diminished during term) (note also a parliamentary commission to investigate allegations of inacapacity/misbehaviour)
• max age to retire is 70
• to resign must resign in writing to GG

Question 4

s 73 Const

Answer 4

Appellate jurisdiction of HC

Question 5

s 75 Const

Answer 5

Original jurisdiction of HC

1) treaty
2) reps of other countries
3) Cth or a person sued/suing Cth
4) between States or residents of dif states, or resident and dif state
5) writ of mandamus/prohibition/injunction sought against officer of Cth

Question 6

s 76 Const

Answer 6

Additional original jurisdiction

1) issues under Const or involving interpretation
2) laws made by Parliament
3) admiralty and maritime jurisdiction
4) relating to same subject-matter claimed under laws of dif states

Question 7

s 77 Const

Answer 7

Parliament’s power to define jurisdiction

1) can define any fed court (other than HCA) jurisdiction
2) define extent to which any fed court shall be exclusive of that belonging to State courts
3) investing any court of a state with fed jurisdiction

Question 8

s 38 Judiciary Act 1903 (Cth)

Answer 8

Matters in which jurisdiction of High Court exclusive

Question 9

s 39 Judiciary Act 1903 (Cth)

Answer 9

Federal jurisdiction of State Courts in other matters

Question 10

s 39A Judiciary Act 1903 (Cth)

Answer 10

Federal jurisdiction invested in State Courts by other provisions

Question 11

Huddart, Parker & Co Pty Ltd v Moorehead (1909) Griffith CJ’s definition of judicial power

Answer 11

power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin … is called upon to take action.’

Question 12

Institutional integrity

Answer 12

possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality. It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.’ - NAJA v NT

Question 13

NAJA v NT (2015)

Answer 13

Client of NAJA arrested under s 123 of Police Administration Act (NT) and detained for 12 hours, after issued with infringement notice (instead of appear before the court).
NAJA argued that s133AB of Act conferred on executive a power to detain that was punitive & punitive detention by the executive in the absence of adjudication may be unconstitutional as contrary to the separation of powers. constitutional question raised a question of interpretation

Question 14

Pompano (French CJ)

Answer 14

Institutional integrity - cases warn about seeking definitional certainty around essential characteristics of courts - they’re historically evolving and can’t be absolutes - Pompano (French CJ)

Question 15

Negative implications

Answer 15

– bcChIII cases treat CH III’s affirmative provisions as exhaustive, supports negative implication in the separation of Cth judicial power among other long-established Ch III implications

eg, Burns v Corbett (2018) State tribunals may not exercise State judicial power with respect to any dispute that falls within the subject-matters listed in ss 75 and 76 of the Constitution

Question 16

Purposive reasoning

Answer 16

widely accepted that terms of CH III are purposive & are interpreted and applied consistently with their purpose –> i. Ch III rules each in their own way advance core attributes needed by the courts that exercise

Question 17

Cth judicial power can only be exercised by

Answer 17

courts (doesn’t apply to state powers)

Question 18

Cth legislative and executive powers cannot

Answer 18

be exercised by courts except for ancillary powers - doesn’t apply to state powers

Question 19

Functions performed by courts must be compatible with

Answer 19

the institutional integrity of those courts (These functional rules apply to State and Cth powers)

Question 20

Functions performed by judges in their personal capacity must be compatible with

Answer 20

the institution (These functional rules apply to State and Cth powers)

Question 21

about Ch III in the Const

Answer 21

1) est HCA - s 71
2) provides act of settlement protections for fed judges - s 72
3) est HCA as national appellate court
4) s 71,73 and 77 establish intergated national court system (implying that state laws must be compatible with institutional integrity of State courts)
5) s 71,75,76, 77 imply sep of Cth judicial power & that Cth laws must be compatible with institutional integrity of courts

Question 22

Ch III denies State legislative power to confer State judicial power in respect of

Answer 22

matters within ss 75-76 other than on courts - Burns v Corbett (2018)