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Separation of Powers

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Sarah Joseph

on 16 June 2015

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Transcript of Separation of Powers

Separation of Powers
Legislative and Administrative/executive power
Vic Stevedoring v Dignan (1931)

S. 3 Transport Workers Act

Very broad unfettered delegation

Section 3 delegated lawmaking power to GG

Parlt can delegate broad power to the executive
What is "judicial power"?
Classical definition in Huddart Parker (1909) – p. 189 text
Indicators of judicial power
Thomas v Mowbray
Section 104, Criminal Code (Cth) authorised the issuance of a control order by a court when the court was satisfied on the balance of probabilities that
(1)(c)(i) the order would substantially assist in preventing a terrorist act OR
(c)(ii) the person had provided to or received training from a terrorist organisation
(d) the terms of the order were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act
Separation of Judicial Power:
Principle 1

Wheat case (1915)

WWF v JW Alexander (1918)

Brandy (1995)
Separation of Powers: Principle 2
Commonwealth can only confer judicial power in Chapter III courts
Cth may not vest non-judicial power in federal courts
Re Wakim, ex parte McNally (1999)
federal courts can only be vested with federal jurisdiction
Harris v Caladine - delegation

discrete exceptions (eg contempt of Parliament, courts martial)
Incidental powers

Persona designata
Hilton v Wells (1985)
Grollo v Palmer (1995)
Wilson v Minister for Aboriginal Affairs (1997)
Separation of judicial powers at State level
States must not vest powers which undermine public confidence in state courts, which are vessels for federal jurisdiction
State courts cannot compromise the institutional integrity of State courts so as to affect their capacity to exercise federal jurisdiction
There is no apparent limit to the ability of States to vest judicial power in non judicial bodies. This is very different to the Commonwealth

States can vest non-judicial powers in judicial bodies. This is a different starting point to the Commonwealth, which cannot. However, there are limits to their powers to do so, introduced in the Kable case. After a lull of 12 years, the Kable principle was finally reapplied in IFT and the succeeding "bikie" cases.

States cannot vest powers that undermine institutional integrity of state courts if they are invested with federal jurisdiction (other "touchstones' in this test = public confidence (Kable), repugnancy (IFT))

K Generation (2009) - extends the above principle so that it applies to State courts which are capable of being vested with federal jurisdiction, even if not yet so vested.

Wainohu raises the possibility that the Grollo/Wilson incompatibility doctrine applies with same force at State level, in cases where judges exercising non judicial power even in personal capacity.
1. Is the non-judicial function closely connected
with the legislature/executive? If no close connection,
no incompatibility

2. Must the function be performed independently of the
instruction of the parliament/executive? If not, there is incompatibility

3. Is a judicial manner of performance required? If not, there is incompatibility
law mustn't be repugnant in a fundamental
degree to the judicial process
does it merge Wilson and Kable?
key was lack of discretion in making control order
- test = focus on institutional integrity of the court
BLF cases

Kable v DPP (1997)

Fardon (2004); Baker (2004)

International Financial Trust (2009)

Totani (2010)

Wainohu (2011)

Jamie Baker's Grollo/Wilson lament
Boilermakers (1956)
sarah joseph
Created with Haiku Deck

Section 71

The 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 Parliament creates, and in such other courts as it invests with federal jurisdiction
Enforceability: Brandy Lesser discretion

Binding, conclusive decision Existing rights/duties

Must be a "controversy" History
required characteristics of courts [6.120]
touchstone = institutional integrity
Full transcript