T9.4 Charactersiation of functions - Cth powers outside courts

Question 1

3 characterizations of judicial functions

Answer 1

1) Exclusively judicial
2) Exclusively non-judicial
3) Innominate

Question 2

Adjudication by Ch II tribunals - what is the tolerance level for Cth administrative adjudication and enforcement action? - Alinta

Answer 2

1. Administrative adjudication bodies have the power to make strong ‘remedial orders’, on determination of ‘unacceptable circumstances’

Question 3

What did HC unanimously hold in Alinta

Answer 3

Takeovers Panel wasn’t exercising judicial power: It was creating new rights rather than simply determining existing rights

i. The declaration and remedial orders were made to set out what the future conduct of affected parties must be/
ii. This means that even though the declaration was dependent upon the finding of a past breach of the Corporations Act, the effect of the declaration and orders was to alter the law that applies to future conduct of the affected parties

Question 4

Administrative adjudication bodies have the power to terminate - Falzon (exec decision withdrawing statutory rights)

Answer 4

important statutory right (visa), for reasons informed by reference to fact of criminal conviction.

Question 5

In Falzon, what did the HC confirm?

Answer 5

Confirmed approach in Lim
- the Cth Parliament can authorise detention otherwise than by court order if the detention is reasonably capable of being seen as necessary for a permissible non- punitive purpose

Question 6

Administrative adjudication bodies have the power to affect important statutory rights (ie, commercial broadcasting license) on (exec decision withdrawing statutory rights)

Answer 6

administrative finding of conduct that constitutes a criminal offence

Question 7

What did HC unanimously hold in Today FM

Answer 7

that ACMA making a finding that a broadcaster (Today FM) had breached a licence condition was not an exercise judicial power (per French, Hayne, Kiefel, Bell and Keane)

i. The finding of a breach of a statute in this case didn’t resolve a controversy respecting existing rights and obligations.
ii. It was a step in the determination of a breach of the licence condition and was the foundation for ACMA to institute civil penalty proceedings in the Federal Court … or to take administrative enforcement measures.

Question 8

What case shows the limit of tolerance for use of administrative adjudication/enforcement

Answer 8

Brandy

Question 9

What was the fatal flaw in the legislation creating the HREOC in BRandy?

Answer 9

specific express provision that required the provision orders to be registered in the Federal court registry such that would be enforceable in the same manner as a federal court order –> conferred judicial power onto a tribunal

Question 10

(C) Principle for detention without judicial order for non-punitive purposes

Answer 10

Only courts can detain individuals for punitive purposes; if the exec or leg punitively detains it constitutes infringement of the first limb of Boilermakers: Chu Kheng Lim; Fardon

Question 11

(C) Chu Kheng Lim principle for detention without judicial order for non-punitive purposes

Answer 11

Only courts can detain individuals for punitive purposes; if the exec or leg punitively detains it constitutes infringement of the first limb of Boilermakers:

Question 12

(C) 2 sub-principles coming from Chu Kheng Lim

Answer 12

a. Cth parliament cannot authorise punitive detention other than by order of a court exercising the exclusively judicial power to adjudge and punish criminal guilt
b. Cth Parliament can authorise non-punitive detention without usurping judicial power

Question 13

(C) For the Cth Parliament to legislate with respect to detention it must be able to point to

Answer 13

valid head of Cth power (eg quarantine)

Question 14

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose

Answer 14

a) detention of aliens/immigration detentin
b) citizens
c) stolen generation
d) detention by police
e) novel case
f) Lim’s test of proportionality
g) preferred approach (not Lim!)

Question 15

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose
a) detention of aliens/immigration

Answer 15

a) Aliens head of power (s 51(xix) Const - gives Cth authority over aliens: Chu Kheng Lim
- 2. Indefinite/no practicable possibility of removal/admittance is still valid provided that the detention is for the purpose of removal/ assessment – Hayne J in Al Kateb
- note limitations

Question 16

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose
b) citizens

Answer 16

i. Non-judicial detention of citizens is punitive unless an exception applies – Chu Kheng Lim; Fardon
(1. Committal awaiting trial; involuntary detention for mental illness/disease/ protective detention for welfare and protection; military tribunals)

note limitations and exceptions

Question 17

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose c) stolen generation

Answer 17

constitutionally valid given it was for the non-punitive purpose of welfare – Toohey, Gummow and Gaudron JJ in Kruger

Question 18

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose d) detention by police

Answer 18

valid if not for punitive purposes

- Northern Australian Aboriginal Justice Agency v Northern Territory

Question 19

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose e) novel case

Answer 19

i. Apply Woolley test; look at object/purpose for which the law authorises/requires detention to whether intended to be punitive eg words of statute, circumstances, mischief, parliamentary debates

Question 20

(C) 7 things/categories to consider when considering whether the detention is reasonably capable of being considered necessary for a valid non-punitive purpose g) Which case rejects Lim’s test of proportionality?

Answer 20

JJ in Woolley
i. Look at object/purpose for which the law authorises/requires detention to see whether it is intended to be punitive

PURPOSE TEST (this test^^) IS PREFERRED APPROACH

Question 21

(D) Legislation imposing sanctions on individuals for past conduct - key principle

Answer 21

a. Bills of attainder prohibited under first limb of Boilermakers as involves parliament (not a Ch III court) declaring that individuals committed a crime/punishing (judicial acts): Polyukhovich
b. b. Retrospective criminal laws are constitutionally valid (this isn’t mentioned in Const):; Kidman this decision’s correctness affirmed in Polyukhovich

Question 22

(D) Legislation imposing sanctions on individuals for past conduct - key consideration

Answer 22

a. Is the law generally applicable (to a class of persons/‘group’) or intended to apply to specific persons? – Polyukhovich

Question 23

(D) Legislation imposing sanctions on individuals for past conduct - key consideration –> if law applies according to general characteristics, then is it validly retrspective?

Answer 23

YES

Question 24

(D) Legislation imposing sanctions on individuals for past conduct - key consideration –> if law applies according to characteristics of/not equilavent to the crime it prohibits or it specifies persons, then is it validly retrspective?

Answer 24

INVALID

Legislation amounts to bill of attainder where it’s clear that legislature intended conviction of specific persons for past conduct

law does this by penalising specific persons by name or by means of specific characteristics which in the circumstances identify particular persons - Polyukhovich

Question 25

Brief facts of Polyukhovich

Answer 25

Polyukhovich was a Ukrainian who collaborated with Nazi German forces - became Oz citizen After these allegations were made, the War Crimes Act 1945 (Cth) s 9(1) was amended such that an Australian citizen or resident is guilty of indictable offence if they committed a war crime in Europe in WWII.

Question 26

outcome of Polyukhovich

Answer 26

• The HC majority accepted that a bill of attainder would be an exercise of judicial power, the fact that a law operated ex post facto (retrospectively changing the legal consequences of an act done in the past) did not automatically make the law a bill of attainder.

Question 27

Cth Parliament cannot authorise detention for a punitive purpose, otherwise than by a court order consequence on the adjudication of criminal guilt - case

Answer 27

Chu Kheng Lim (1992)

Question 28

Detention of a non-citizen for deportation is a non-punitive purpose

Answer 28

Falzon; Al Kateb