T9.5 Institutional Integrity of Courts

Question 1

General Principles (3)

Answer 1

1. State CH III Courts operate within an integrated national court system derived from s71 and 77(iii) Constitution
2. Note s77(iii) gives Parliament power to legislate wrt Courts; enabled them to pass s39(2) of Judiciary Act 1903 (Cth)
3. S 72 sets the relevant standard of federal courts – strictly applies to all fed court appointments

Question 2

(1) Key question to ask for federal courts

Answer 2

1. Have judicial officers been appointed under strict compliance with s 72 Constitution?

Question 3

(1)For federal courts, if no compliance with s 72 provisions for appointment to Fed institution is it a court for the purposes of Ch III?

Answer 3

not a court for the purposes of Chapter III eg, Alexanders Case

Question 4

(1)Kable principle for states

Answer 4

no strict separation of powers at the State level

Question 5

(1)B. State may be vested with non-judicial powers provided

Answer 5

they are not incompatible with the institutional integrity of a Court – Toohey, Gaudron, McHugh and Gummow JJ in Kable

Question 6

(1)C. Can States/territories appoint acting judges for renewable terms?

Answer 6

YES - Forge v ASIC

a. security of tenure an important mechanism for achieving institutional independence but doesn’t translate to strict requirement that it be applied to every state/territory court

Question 7

(1)D. State court satisfies constitutional requirement of independence if it’s constituted primarily of

Answer 7

primarily of judges who have act of settlement security of tenure

Question 8

(1)Noting the difficulty in defining the requisite standards of institutional independent for state courts, what is the “irreducible minimum for a State court”

Answer 8

“independence and impartiality is the – Tasmanian Anti-Discrimination Tribunal – Kenny J

Question 9

(1)What does AG v GAtsby say about state parliament vesting judicial power on state tribunals?

Answer 9

A state parliament can’t vest state judicial power on state tribunals in matters listed in s 75 of the Const – AG v Gatsby [2018]

Question 10

(1)AG v Gatsby - what constitutes a court of the state?

Answer 10

1) constituted predominately of judges
2) compliance with Act of Settlement 1701 (UK) terms of appointment
3) can’t be appointed on basis that they are capable of representing a group of persons in respect of the matters the body/tribunal has jurisdiction
4) members must be removed by Governor from address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity per the constitution Act 1902 (NSW) s 53(1)

Question 11

(1)this is considered the chief mechanism for achieving independence and impartiality for state courts?

Answer 11

compliance with Act of Settlement 1701 (UK) terms of appointment - Forge case

Question 12

(1)in order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only

Answer 12

as a court, but as a court of law – Skiwing [52] Spigelman CJ (cited in Gatsby)

Question 13

(2) key question to ask (having established that the non-judicial function is validly conferred on a State Ch III court)

Answer 13

Is the non-judicial function incompatible? – French CJ, Kiefel, Bell JJ at [39] in Northern Australian Aboriginal Justice Agency

Question 14

(2) key question to ask (having established that the non-judicial function is validly conferred on a State Ch III court) - considerations (1-4)

Answer 14

1) conferring function that’s incompatible with role as a court - Kable
2) undermining appearance and reality of the court’s independence and impartiality - Forge
3) Damaging application of procedural fairness - Leeth
4) Undermining open court principle? - Diackson, Russel

Question 15

(2) key question to ask (having established that the non-judicial function is validly conferred on a State Ch III court) - considerations (5-7)

Answer 15

5) Failure to provision of reasons for decisions? – Wainohu
6) causing exec to intrude impermissibly into the processes of a court - international finance trust
7) conferring non-judicial functions on judges substantially incompatible with the function of the court of which the judge is a member – Forge

Question 16

(2) key question to ask (having established that the non-judicial function is validly conferred on a State Ch III court) - considerations (8-9)

Answer 16

8) enacting laws which would authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with that court’s institutional integrity - SA v Totani
9) State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member – Wainohu

Question 17

Cases highlighting institutional independence principles

Answer 17

A-G (NSW) v Gatsby [2018] NSWCA

It’s beyond State legislative power to confer judicial power in relation to subject-matters within federal jurisdiction other than on courts within the meaning of s 77(iii): Burns v Corbett (2018

Question 18

Cases highlighting decisional independence principles

Answer 18

Lim’s Case
South Australia v Totani (2010)
AG for the Northern Territory v Emmerson

Question 19

Cases highlighting procedural fairness principles

Answer 19

International Finance Trust Co v NSW Crime Commission (2009)
Assistant Commissioner Condon v Pompano Pty Ltd (2013) -

Question 20

International Finance Trust Co v NSW Crime Commission (2009) principle:

Answer 20

• French CJ: Procedural fairness lies at the heart of the judicial function and an is an important characteristic of judicial power. The Commission’s power to require the Supreme Court to proceed ex parte deprives the Court of the ability “to ensure, so far as is practicable, fairness between the parties.”

Question 21

Assistant Commissioner Condon v Pompano Pty Ltd (2013) - French CJ: Procedural fairness can be reduced without

Answer 21

distorting institutional integrity, as long as the court retains its decisional independence and powers necessary to mitigate the extent of the unfairness to the respondent in the circumstances of the particular case

Question 22

Cases highlighting public explanation of reasons

Answer 22

Wainohu v NSW (2011)
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

the giving of reasons, which is a hallmark of the judicial function, was denied