Separation of Powers & Boilermakers
• 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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Continued
Grollo v Palmer (1995)
• Act (disputed in Hilton) amended to make clear that judge issuing warrant did so as persona designata.
• Dispute concerned the compatibility of functions
• Majority adopted two part test (drawn from a US authority)
1. No non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent
2.
No function can be conferred that is incompatible either with the
judge’s performance of his judicial functions or with the proper
discharge by the judiciary of its responsibilities as an institution
exercising judicial power.
• Examples of incompatibility
o Might require such a permanent & complete commitment that they can’t do their other duties.
o The extra duties may impair or compromise the judge’s integrity
o Extra duties may diminish public confidence in judge or court’s ability to discharge judicial functions with integrity.
Drake v Minister for Immigration (1979)
• Appointment of FC judge as deputy president of non-judicial tribunal.
• Appointment was not conferring functions on the FC, only personal functions on the judge.
• Distinction drawn between:
o Permissible – Appointing a person, who has the qualification of a judge of the FC, to perform an administrative function.
o Impermisisble - to invest a Ch 3 court with administrative functions
Hilton v Wells (1985)
•
FC judge empowered to issue telephone tap warrants (note that this was
a non-judicial function that couldn’t be conferred on the court itself).
•
One of alleged conspirators argued that this was a conferral of
administrative functions on a judicial officer & therefore
unconstitutional.
• HC rejected this argument – was a conferral of administrative functions to an individual, not to a court.
•
Fact that criteria was FC judge merely indicates parliament’s desire
to single out judges because of their judgment and independence.
•
Note: Even if powers are conferred personally, if the nature of the
functions conferred on the judge conflicts with judicial functions or
impair their independence, then they will be invalid under 2nd
Boilermaker principle.
Separation of Powers at State Level
• There is no constitutional doctrine of separation of powers in either State constitutions or Cth constitution.
• The only limitation applies to State courts that are vested with Federal Jurisdiction → Kable below
Incompatibility Doctrine Kable v DPP (1996)
• State courts that exercise Federal jurisdiction cannot exercise
powers that are incompatible with that exercise of federal jurisdiction
•
State legislation will be invalid due to breach of Ch3 if it confers
powers upon State supreme courts which are incompatible with its
exercise of federal judicial power.
• Any function that
undermines the institutional independence of the Supreme Courts from
the executive will be incompatible with the exercise of the federal
judicial power.
• “This means they must be independent &
appear to be independent of their own State’s legislature &
executive govt as well as the federal legislature & govt.”
•
“non-judicial functions cannot be of a nature that might lead an
ordinary reasonable member of the public to conclude that the Court was
not independent of the executive govt of the State” per McHugh J
•
Note: This isn’t a principle based on individual rights. Principle
court was concerned with was the public’s confidence in the judiciary
as an institution. Therefore, this doctrine wouldn’t apply to state
powers vested in non-judicial bodies. ie. The case where they were to
give the powers directly to the governor of Kable’s prison.
Attempts to extend the Incompatibility Doctrine
• These cases sought to extend the incompatibility
doctrine, as identified in Kable, by challenging certain laws on the
basis that they required the courts to perform functions (ie by
applying the laws) which were incompatible with the judicial function
(the effect on public confidence in the judiciary being the main
justification for this notion of incompatibility).
• The cases have failed to extend the doctrine in this direction beyond the specific example of Kable.
R v Moffat
• S18(a) allowed Cth to pass effectively indefinite sentences
•
This was different from Kable because it had a broad application,
& was still effectively punishment for the original crime (akin to
parole)
• Legislation was upheld in face of incompatibility challenge
Wynbyne v Marshall
• Argued that mandatory sentencing laws removed judicial discretion
•
But Supreme Ct drew distinction with Kable because the Act didn’t
direct the Ct to find a person guilty, all it did was change the
prevailing statutory discretion when it came to sentencing.
• In no way did this interfere with their independence in a way that made the functions incompatible.
Nicholas v R
•
Argued that amendment to Crimes Act to not exclude evidence obtained
by entrapment etc, was impacting on the judicial process
• Rejected on similar grounds to Wynbyne v Marshall above.