T9.3 Separation of Cth Judicial and Non-Judicial Power

Question 1

What are the steps do determining whether an institution is exercising judicial power?

Answer 1

(1)
1. apply general definition
2. go through clear egs of judicial power
3. indica of judicial power where a marginal case
4. Chameleon function
(2) First limb Boilermaker’s case
(3) 2nd limb boilermarkers
(4) does legislation seek to interfere, exercise or usurp judicial power?

Question 2

Facts of Brandy v HREC

Answer 2

HREC could make determinations regarding racial discrimination complaints. Statute required HREC determinations to be registered with Fed Court, following this the determinations became binding and had effect as if they were Fed Court orders (even though Fed court had no role in determining whether it was binding) unless respondent applied to Fed Court for review

Question 3

Definition per Huddart, Parker & Co v Moorehead of judicial power(applied in Brandy v HEROC):

Answer 3

1. The 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.

Question 4

clear examples of judicial power

Answer 4

1) exclusively judicial
2) exclusively non-judicial
3) innominate

Question 5

2) a. exclusively judicial power examples

Answer 5

a. Imposition of penalties: Alexander
b. Judgment and punishment of criminal guilt: Chu Keng Lim
c. Determination of the constitutional validity of legislation: Plaintiff S157/2002
d. Determination of the validity of executive or administrative exercises of power: Plaintiff S157/2002
e. determination of traditional common law claims (torts, contracts): AG v Breckler
f. Exercise of power later declared invalid still judicial power until overturned: Kable No 2

Question 6

2) b. Exclusively non-judicial

Answer 6

a. Contributing to legislative policy formulation
b. Appropriating public revenue
c. Appointing judges
d. ‘watch dog’ or investigate law enforcement activities’

Question 7

2) c. Innominate

Answer 7

a. Making decisions establishing new statutory activities or rights/alter/terminate existing statutory rights or obligations
b. Official powers dealing with Rs & obligations under regulatory statutory schemes more likely to be viewed by court as innominate in contrast with powers that confer rights or obligations H A Bachrach Pty Ltd v QLD

Question 8

3. Indica of judicial power where a marginal case

Answer 8

1. enforceable by execution
2. existing rights/duties
3. decision binding and conclusively determines Rs/liabilities
4. only applies established legal standards
5. Must determine a controversy, ie a matter
6. involves resolution of a legal right
7. historical factors
8. right to appeal

Question 9

Is satisfaction of any of the indica of judicial power determinative?

Answer 9

NO - Palmer v Ayres

Question 10

Is satisfaction of any of the indica of judicial power determinative?

Answer 10

NO - Palmer v Ayres

Question 11

3. Indica of judicial power where a marginal case - 1. Brandy principle

Answer 11

determination must be enforceable by execution –> this is the most decisive factor for it being judicial. Includes enforceability via registration with a court

Question 12

3. Indica of judicial power where a marginal case 2. Tas Breweries; AG v Alinta

Answer 12

Must consider and determine existing rights/duties? to be judicial (1. Determinations re: future rights and obligations are non-judicial – Tas Breweries; AG v Alinta)

Question 13

3. Indica of judicial power where a marginal case - Kable

Answer 13

decision binding and conclusively determines the rights and liabilities of its subjects to be judicial

Question 14

3. Indica of judicial power where a marginal case - 4. Tasmanian Breweries (& Alinta)

Answer 14

can only apply established legal standards to be judicial (In contrast, decisions based on of vague public interest, administrative discretion broad subjective standards, and policy - non-judicial)

Question 15

3. Indica of judicial power where a marginal case - 5. ACMA v Today FM

Answer 15

must determine a controversy and be a matter before the court

Question 16

3. Indica of judicial power where a marginal case 6. ACMA v Today FM

Answer 16

must involve resolution of a legal right (: power of inquiry and determination takes its legal character from the purpose for which it is undertaken; here the purpose is administrative - Today FM case)

Question 17

3. Indica of judicial power where a marginal case 7. Thomas v Mowbray, (Pulyukovich)

Answer 17

1. Some things will be considered judicial due to history, AVOs, bail, control orders even though prima facie not judicial - Thomas v Mowbray (Gleeson)
2. Adjudication of guilt is judicial – Deane J in Pulyukovich

Question 18

3. Indica of judicial power where a marginal case 8. Brandy

Answer 18

1. Mere right to appeal does not indicate judicial power – Brandy

Question 19

4. Chameleon principle

Answer 19

i. principle of statutory interpretation applied when evaluating the character of a function conferred by Cth legislation. The principle is that functions are assumed to take their character from the body on which they are conferred. (Brandy v HEROC eg, fact finding; Thomas v Mowbray eg, control orders)

Question 20

principles limbs

Answer 20

1) Judicial power of the Cth can only be invested in a Chapter III court
2) Parliament can only require Ch III courts to carry out functions that are judicial or incidental to its judicial function (NB, if the non-judicial function is merely incidental or ancillary (e.g. registry) then this is ok)

Question 21

Boilermaker’s 1) Judicial power of the Cth can only be invested in a Chapter III court –> 1. Is it a Chapter III court?

Answer 21

Must be consistent wiht requirements of s 72 for fixed tenure, note s 71 and 77 regarding vesting of Cth judicial power into courts

Question 22

Boilermaker’s 1) Judicial power of the Cth can only be invested in a Chapter III court –> What aren’t Ch III courts

Answer 22

body established by the Constitution for administrative purposes only - Wheat case

Question 23

Effect of Boilermaker’s first limb –> 1) Judicial power of the Cth can only be invested in a Chapter III court

Answer 23

a. If the body is not a Ch III court AND the power is judicial → it is invalid, administrative functions remain valid
b. If the body is a Ch III court AND the power is judicial → move onto second limb

Question 24

Boilermaker’s 2)Parliament can only require Ch III courts to carry out functions that are judicial or incidental to its judicial function (NB, if the non-judicial function is merely incidental or ancillary (e.g. registry) then this is ok) –> generally

Answer 24

i. If the body is a Ch III court AND the function is non-judicial then it is invalid UNLESS the persona designata (or other) exception to Boilermakers applies.

Question 25

Boilermaker’s 2)Parliament can only require Ch III courts to carry out functions that are judicial or incidental to its judicial function (NB, if the non-judicial function is merely incidental or ancillary (e.g. registry) then this is ok) –> EXCEPTION

Answer 25

Persona Designata Rule
where non-judicial power is vested in Cth Judge in his/her personal capacity as a persona designata rather than in the Ch III court itself, then this is acceptable as long as not incompatible – Drake; Hilton v Wells; Grollo; Wilson

Question 26

Conditions of persona designata rule

Answer 26

1) statute confers power on judge as individual in their personal capacity (statutory interpretation) - Hilton v Wells
2) Judge consents to conferral of power - Grollo
3) application of rule isn’t incompatible with J’s performance of judicial functions/judiciary’s discharge of responsibilities - Grollo

Question 27

Incompatibility test requirement for Persona designata rule

Answer 27

Per Wilson

a) can’t be closely connected with exec /legislature
b) function must be performed independently of any advice/wish of legislature/exec (if not, then incompatible)
c) discretion of J in this capacity can’t be exercised on political grounds (if yes, then incompatible)

Question 28

EFFECT OF Boilermaker’s 2)Parliament can only require Ch III courts to carry out functions that are judicial or incidental to its judicial function (NB, if the non-judicial function is merely incidental or ancillary (e.g. registry)

Answer 28

i. If the body is a Ch III court AND the function is non-judicial then it is invalid
ii. BUT if the persona designata applies then it is valid

Question 29

(4) does legislation seek to interfere, exercise or usurp judicial power?

Answer 29

If so then potential to apply the reasoning in Kable, (as discussed in Chu Kheng Lim’s Case) need to question whether such intention infringes the institutional integrity of the court?

Question 30

Kable Principle (1996)

Answer 30

there is no separation of powers in States. The Kable principle is not the same as the Boilermakers principle.
States can invest State courts with non- judicial functions. However, State courts’ institutional integrity must be maintained.

Question 31

Facts of Wainohu

Answer 31

NSW could allow ‘eligible judges to enforce control orders against members of declared organisations - Rules of evidence do not apply; judge is not required to provide any grounds or reasons; there is no right of appeal.

Question 32

What did HC majority in Wainaho hold?

Answer 32

legislation was invalid, as the persona designata function of declaring organisations was incompatible with the institutional integrity of the court from which the eligible judges were drawn

Question 33

Kable principle applied to facts of Wainohu - ie, the persona designata appointments at state level + 3 reasons why functions conferred on judges persona designata was incompatible with judicial function

Answer 33

Under the Kable principle, a State Parliament cannot enact a law conferring upon a judge or a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member

• 1) here, overlap between non-judicial and judicial roles
• 2) it appeared as though declaration decisions were judicial decisions
• 3) giving of reasons ‘hallmark of judicial function’ was denied’