Published on 23/05/2007

The Court System

Judicial Power and the Doctrine of Separation of Powers

Judicial independence has to be theoretically independent from the parliament and from the Executive arms of Government.

BLF v Minister of Industrial Relations: “For Parliament…to trespass into…the judicial process is an affront to a society that prides itself on the quality of justice. Under the Commonwealth Constitution it would, attract a declaration of invalidity.”

BLF v Minister of Industrial Relations - Parliament has come near to interference with the independence of the courts.

* NSW Parliament passed a legislation that sought to pre-determine the outcome o a dispute which was at the time the main subject of an appeal (in process) to the Court of Appeal.
* It was held that the action could not be invalidated either by relying on the Separation of Powers doctrine or by reference to s5 of the NSW constitution.
* However, warnings were sounded about the intervention of the Parliament – Not so much with the judicial process, but with the independence of the institution itself.

Liyanage v The Queen - Case where the legislation attempted to circumscribe the judicial process.

Judicial Power of the Commonwealth

Outlined in the Constitution s 71, 73-75

The Boilermakers’ case: defining “Judicial Power” The view of the HC enshrined in the decision in R v Kirby; Ex parte Boilermakers’ Society of Australia, has been that the judicial power of the Commonwealth ought to be sharply distinguished from all other institutional powers, for instance:

* A power which is properly judicial can only be exercised by a federal court created under s71;
* Such a court cannot exercise a power which is non-judicial in its nature, even though it might be ancillary or incidental only;
* It requires a very strict interpretation of the separation of power doctrine/

Separation of Powers Doctrine

This doctrine attempts to prevent the abuse of power in the Commonwealth system, where under this doctrine, each branch of government should not interfere with other branches of government.

The first 3 chapters of the Constitution helped courts determine that the doctrine of the separation of powers exists in the Commonwealth:

§ Chapter I – ‘The Parliament’ (Makes Law)
§ Chapter II – ‘The Executive Government’ (Enforces Law)
§ Chapter III – ‘The Judiciary’ (Interprets Law)

R v Kirby: ex parte Boilermakers’ Society of Australia

“The powers of the federal judicature must therefore be at once paramount and limited…The Constitution of the Commonwealth is based on a separation of the functions of government, and the powers which it confers are divided into three classes – legislative, executive and judicial…In each case, the Constitution first grants the power and then delimits the scope of its operation.”

Commonwealth Courts

All deal with commonwealth laws only.

High Court of Australia

Judiciary Act 1903 (Cth) page 8.34 of the course folder

Constitution, ss 71-77

* Highest court in the land
* Consists of a Chief Justice + 6 other Justices
* Role of the court is to interpret the commonwealth constitution and to create a standard coherent body of common-law to be followed around the country.
* Has original and appellate jurisdiction
* Constitution gives HC original jurisdiction under a number of matters:

- Matters on treaties
- Matters where the Commonwealth is on of the parties in the conflict
- Conflicts between states
- Administrative law matters

* Has Jurisdiction over Constitutional Matters

You cannot just appeal straight to the HC – you must seek leave to appeal to the HC and it is at the discretion of the HC as to whether or not it will hear your case. HC must be selective as it is very time limited.

Federal Court of Australia

Constitution, s71
Federal Court of Australia Act 1976 (Cth), ss 5, 6, 14, 20, 24, 25, 32 Page 8.42
Workplace Relations Act 1996 (Cth) ss 412-416, 422

Specifically to deal with Common Legislation – it has original jurisdiction in administrative law matters. There are approx 120 pieces of commonwealth legislation over which it has jurisdiction – i.e. human rights, intellectual property, immigration, taxation etc

Family Court of Australia

Constitution, ss 51(xxi), 51(xxii), 71
Family Law Act 1975 (Cth), ss 21, 21A, 22, 95, 97

Has Jurisdiction over matters relating to divorce, marriage, maintenance orders, residency of children etc… The primary aim of the court is to give priority to the best interests of the Child. The family court attempts alternative dispute resolution as much as possible – counselling, reconciliation etc…

No juries in the family court.

Federal Magistrates Court of Australia

Federal Magistrate Services – Newsletter by Byrant Page 8.50 of course folder

Lowest level of federal courts
Has vast jurisdiction – judicial review of administrative action usually commences here.

New South Wales Courts

Supreme Court of NSW

Supreme Court Act 1970 (NSW), ss 22, 23, 25, 26, 38, 40-43, 53, 57-63, 69, Sch 5 Page 8.65 Course Folder

Law Reform (Law and Equity) Act 1972 (NSW), ss5-7

Organisation of the original jurisdiction of the Supreme Court of NSW Page 8.52

Presided over by a Chief Justice (as well as others)
Looks at serious criminal and civil cases and deals with amounts of money over $1,000,000 Court of criminal appeal hears appeals from local courts/district courts etc

Supreme Court divides cases up – primarily into common-law and equity

District Court of NSW

Districts Court Act 1973 (NSW), ss 11, 12, 44, 46, 48, 51, 133, 134, 140, 141, pt4 Page 8.59 of course folder

Both criminal and civil jurisdiction presided over by judges. Serious criminal offences/drug offences/sexual offences – not murder or treason.

Civil cases such as personal injury/debt recovery and monetary amounts of up to $1,000,000 and also hear appeals from children’s courts and local courts etc…

Local Courts

Local Courts (Civil Claims) Act 1970 (NSW), ss 6, 7, 12. 19, 23A, 23B, 69. Page 8.65 of course folder.

They hear minor matters, if it is of a monetary involvement they hear cases p to the value of $60,000.

They also conduct committal hearings for the more serious offences – hearing to establish whether there is sufficient evidence for the prosecution to proceed to the District or Supreme Court for trial.

Other NSW Courts

Compensation Court Act 1984 (NSW), ss 4, 6, 7, 9, 12, 15-17, 32
Workers Compensation Act 1987 (NSW), ss 9, 107
Industrial Relations Act 1996 (NSW)

Land and Environment Court

Specialist court - deals with disputes over land – environmental crimes etc… Has a status equal to the Supreme Court – however it can operate in an informal manner then the Supreme Court. This court is not bound by rules of evidence and procedure – can pretty much set its own agenda.

Industrial Relations Commission
State Coroner

Specialist court – investigates uncertain deaths etc…

Children’s Court

Same status as a local court
Involves criminal proceedings for people under 18
Also, involves care proceedings: Doesn’t necessarily involve someone who has broken a law.

Drug Court

Drug Court’s jurisdiction is west and south west Sydney only. Deals only with Drug related matters.

Cross-vesting Scheme

Cross vesting allows for federal, State and Territory Courts to exercise each other’s jurisdiction

The general cross vesting scheme established by the Jurisdiction of Courts (Cross-vesting) Acts 1987 – main purpose is to avoid jurisdictional disputes arising in the Australian judicial system. Proceedings commenced in a court covered by the schemes cannot fail for want of jurisdiction, but proceedings commenced in an inappropriate court nay be transferred to a more appropriate court.

RE WAKIM: EX PARTE MCNALLY – Page 8.69

HC decided that it was beyond power for the State Governments to invest a Federal Court with State Jurisdiction.

- The Construction of the Commonwealth cross-vesting provisions
- The relevance of State Power: Gould v Brown upheld the validity of the cross-vesting scheme in the Corporations Law, where an argument was directed to whether the Parliament of a State has power to confer jurisdiction on a court not created by that legislature.

Brennan CJ and Toohey J concluded: “That parliament of a State does have power to vest jurisdiction under State law in a non-State court even if that power had no existed at the establishment of the Constitution.”

- The arguments in favour of validity
- Co-operative legislation

R v Duncan - “The constitution effects the division of the powers between the Cth and the States but nowhere forbids the Cth and the States to exercise their respective powers in such a way that each is complementary to the other…so that together they may achieve…a uniform and complete legislative scheme.”

- A power to consent?

Mr Justice P W Young, “Recent Cases” from the Australian Law Journal

High Court declares part of cross vesting scheme invalid

Honours said in Re Wakim Ex parte McNally at 867: “But whatever may be the content of any legislative power implied from the creation and exercise of the Cth as the national policy, that power does not authorise the Parliament to consent to the vesting of State Jurisdiction in federal Courts.”

Concluded at 868: “The Cth legislation that purports to confer State jurisdiction on Federal Courts…is invalid”

Therefore, Corporations Law matters must be dealt with in the State Courts at least unless there can be some accrued jurisdiction in a Federal Court.