•    Separation of powers according to function –
o    Legislative: to be exercised by Federal Parliament    
o    Executive: exercised by the Queen or GG, but in practice by Ministers
o    Judicature: vested in and exercised by the Courts
•    We are concerned with the separation of judicial power (from the other 2)
•    The insulation of judicial power is a fundamental principle of the constitution.

Classic Definition Huddart Parker (1931)
•    “the words ‘judicial power’…mean the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.”

Recognisable Characteristics of Judicial Power
(1)    the power to make conclusive decisions
(2)    enforceability of decisions – without having to refer to an enforcing body after having made a decision
(3)    decisions made in respect of existing rights & obligations
(4)    narrow width of discretion – only meant to have regard to a narrow range of factors in the decision making process
(5)    must be a controversy to attract judicial power
(6)    historical considerations – was it historically a judicial function?

Boilermakers Principles    Boilermakers (1956)
•    majority: “the arbitration court…is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose & essential functions the exercise of any part of the strictly judicial power of the Cth. Ch III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Cth”

Definition of Ch 3 Court – Section 72
•    a State court with Cth jurisdiction
•    The High Court
•    A Federal Court that meets the criteria prescribed in s72 (currently The Federal Court, the Family Court & Industrial Relations Court)

(1)    The judicial power of the Cth can only be exercised by CH3 courts – the vesting of Cth judicial power in any other body is invalid
•    Fairy uncontroversial proposition that stands for fact that s71 is exhaustive

Brandy v HREOC (1995)
•    Concerned HREOC which was set up under racial discrimination act, with power to reconcile & arbitrate disputes about discrimination.
•    If arbitration failed, REOC would decide dispute under legislation, looking at the terms of the legislation to determine whether they’d been breached.
•    They then had wide-ranging remedial powers
•    The problem lay in one section, dealing with the registration process, whereby the decision of REOC had to be referred to a FC, who made it
enforceable. Once the order had been registered, it had to be complied with.
•    Court said that the registration process was judicial, because that’s what made it enforceable. But REOC wasn’t a Ch3 court because it lacked some characteristics of s 72.

(2)    Chapter 3 courts may not exercise non-judicial power – unless it is incidental to the judicial power they exercise
•    Allows ancillary powers which are strictly incidental to its functioning as a court.

Exceptions to the 2 Principles

Exceptions to Principle (1)
(i) Delegation of Judicial Power
•    Ch3 courts can delegate elements of their function to non-judicial officers

Harris v Caladine (1991)
•    Delegation of some duties to registrars in the Family Court
•    HC held this to be permissible, as long as judges maintain the main responsibility, especially in contested matters
•    Actions of the delegate must always be subject to review by court

(ii) Discrete & Historically Recognised Exceptions
•    Contempt of Parliament
•    Court Martials & Military tribunals
•    Public service disciplinary tribunals

Exceptions to Principle (2)
(i) Powers incidental to the exercise of judicial power

(ii) Persona Designata Appointments / Powers
•    a Federal judge may validly be appointed/assigned to perform non-judicial functions if the appointment/assignment is addressed to the individual
•    This is true even if federal judicial tenure is the criteria for selection.

Incompatibility doctrine The Hindmarsh Bridge Case (1996)
•    Appointment of FC judge to prepare report for govt. regarding the Hindmarsh bridge dispute (secret womens’ business)
•    Held that asking Mathews J to write the report was incompatible with her role as HC judge, primarily because of the need to maintain perception of independence.
•    Majority formulated 3 part test (approving of Grollo)
1.    Is function integral part, or closely connected with the functions of the legislature, or executive govt? [If not, then no question of incompatibility]
2.    Does function require judge to perform function independently of any instruction, advice or wish of the executive gov, or legislature, or law, or instrument of a law? [If no, incompatible. If yes, proceed.]
3.    Is the discretion that the judge exercises to be exercised on political grounds (defined as grounds that are not confined by factors expressly or impliedly prescribed by law)? [if yes, incompatible. If no, permissible function]
•    Note: this is a very strict test due to “require” in part (2). Because the Act must require independence, despite the judge probably choosing to act independently.
•    In this case Act didn’t require independence. Would have had to write report based on Minister’s policy, or on her own policy determined by political factors. Both of which are undesirable outcomes.

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