T9.6 - Ch III Mojo

Question 1

2 key areas of this topic

Answer 1

A. FUNCTIONS CONFERRED ON JUDGES PERSONA DESIGNATA

B. CIVIL PREVENTATIVE OR CONTROL ORDERS

Question 2

(B) 1. Thomas v Mowbray

Answer 2

1. Control orders do not infringe the second limb of the separation as they do not confer a nonjudicial power on Ch III courts

Question 3

(B) 2. With control orders, what’s the issue?

Answer 3

whether the courts retains its capacity to act fairly/impartially - Pompano

Question 4

(B) 3. For the use of civil preventative or control orders can the right to appeal such orders be removed?

Answer 4

NO - Kirk

Question 5

Vella facts

Answer 5

• Case concening s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016  NSW Ct may make a serious crime prevention order if satisfied on various requirements.
• Was challenged by arguing it was incompatible with institutional integrity of State courts (relied on Kable (No 1)

Question 6

Serious Crime Prevention Orders upheld - case

Answer 6

Vella (2019)

Question 7

Vella - outcome

Answer 7

• no relevant distinction can be drawn between the regime upheld in Thomas v Mowbray and the SCPO Act.
• nothing antithetical to the judicial process,
- nothing that could impair the institutional integrity of a State Supreme Court, in open-textured legislation that establishes broad principles to be developed and applied by courts.

• The application of these rules to persons by courts is the very nature of the judicial process.