Course Breakdown: Separation of Powers and Conferral of Power on a Body, Exams of Law

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PART 1 Course breakdown Judicial 1) Separation of powers – introduction 2) Separation of judicial power 3) Application and exceptions 4) Separation for State courts Executive 5) Executive accountability 6) Judicial + Public accountability + FOI Other 7) The State constitution 8) Human rights The potential questions - Boilermakers application o X seeks your advice as to whether Y can be enforced as a judgment of the Federal Court of Australia - Persona designata o Is the appointment of Justice P valid? o How can the appointment of Justice P be invalidated? - Kable (when there is a State court) o Advise T as to the legality of the confiscation/declaration of S - Avenues of review o Advise G on what avenues of review he can pursue o Advise H and J on whether each of them have a right to reasons, and their options to challenge the decision - Freedom of information (* look at jurisdiction!) o Advise F about his legal options to obtain a copy of the report o Advise L about his options to obtain access to the report - Extra-territoriality (* note where there is an interstate matter) o Advise M whether section X of legislation Y can validly apply to his conduct in Queensland - Manner and form o Advise U whether X Act could be repealed by an ordinary bill passed by Parliament CONFERRAL OF POWER ON A BODY 1) Issue: Whether the power has been validly conferred on the body 2) State: In Boilermakers two limbs were established: federal judicial power could only be vested in a chapter III court, and a chapter III court could exercise nothing but federal judicial power 3) Determine: What is the body? a. Executive i. If so, the 1st limb applies b. Judicial i. If so, 2nd limb applies 4) State: In Ex parte Tasmanian Breweries, Kitto J stated that an exhaustive definition of judicial power has not been possible to frame 5) State: In order to first determine whether the power is judicial, the indicia of judicial power identified in Huddart Parker and Co v Moorehead need to be analysed 6) Determine: What is the nature of the power? a. Power derived from a sovereign authority? i. Does the body get their power from legislation? ii. Analyse on facts – cite specific section! b. Binding and authoritative decision? i. If something can be registered as a Federal Court judgment: Brandy v Human Rights Commission, which tells us that a binding and authoritative makes the power judicial 1. Consider: Is there a strict appeal, or an appeal de novo? a. De novo appeal allows new facts or evidence c. A controversy about existing legal duties and rights: a ‘matter’? d. Inter partes? i. Are both parties present? ii. A party has a right to know a case against them e. Ascertainment of the law as it is? f. Determination of the facts as they truly are? g. Performed in a judicial manner? i. Appropriate judicial discretion? ii. In accordance with judicial process? 7) Consider: Chameleon powers doctrine a. State: As discussed in Re Dignan, there are certain powers that may be either judicial or executive depending on the body in which they are reposed i. Dispute about existing rights and obligations / ‘matter’ (often) ii. Finding of fact iii. Interpretation of law iv. Application of law to fact v. Decision vi. If an executive body has several of these characteristics, yet lacks important judicial indicia, it can still be valid conferred: Ex Parte Tasmanian Brewers 8) Conclude a. If valid: Sections X and Y of Act Z must be valid as they do not breach the 1st/2nd limb of Boilermakers b. If invalid: Sections X and Y of Act Z must be invalid as they breach the 1st/2nd limb of Boilermakers CASE AUTHORITY If there is retrospective criminal law Polyukovich v The Queen: Retrospective criminal law is a valid exercise of legislative or executive power; But, Parliament cannot determine whether that law is breached If in immigration detention whilst considering a visa application Lim: This is permissible, so long as the purpose is for considering a visa application, and will result in removal if denied If people have been removed from their home/families Kruger: So long as the intention behind the legislation is non-punitive, this will be acceptable If there are poor conditions in detention Behrooz: Harsh conditions are irrelevant to determine whether the detention was punitive If detention is potentially indefinite Al-Kateb: Even where there may be no prospect for removal in the reasonably foreseeable future, detention will not be punitive If children have been detained Re Woolley: Even a breach of international obligations will not make detention punitive PERSONA DESIGNATA 1) Issue: Whether the appointment is a valid persona designate appointment 2) State: The second limb of Boilermakers states that a federal Chapter III court can only exercise federal judicial power 3) State: There is an exception, however, where the judge is acting in their personal capacity: Drake creates, Hilton confirms, Wilson applies 4) Determine: Is the function conferred on a judge in their personal capacity? 5) Determine: Is there consent of the judge? Grollo v Palmer, which was originally the dissent in Hilton v Wells 6) Determine: The task must not be incompatible with the judicial function: Grollo v Palmer: (Any one of these invalidates appointment) a. Breadth of commitment Consider: time taken, judge’s involved; location; think about court as a whole – ok if there are still many other judges to do work i. If possible, mention that the President of the AAT does not sit on the Federal Court at all b. Integrity compromised Consider: In performing the function is the judge going to come across information that could preclude a judge from impartially determining a criminal case in the future? i. If relevant, discuss McHugh Grollo dissent: conflict between an obligation not to divulge information learnt in a wire tap and an obligation to reveal to parties in a case before them that they knew something about the case ii. However, per the majority in Grollo, a judge could simply recuse themselves c. Public confidence diminished i. Close connection to the executive or legislative? 1. Is advice given directly to government minister? 2. Does the report give the minister power or is it just advice? Wilson a. If no = valid; If yes = continue ii. Is the function to be performed independently of any instruction wish? 1. Consider: There is no reason to think that judges will not be independent 2. Wilson states that independence must be expressly stated a. If no = invalid; If yes = continue iii. Is the function legal or political? 1. Consider: Is there a consideration of public funding? Will be political a. If political = invalid 7) Conclude a. The most likely option PART 2 1) SEPARATION OF POWERS - GENERAL General - Separation of powers was adopted from the American federation; however, we retained the UK’s responsible government Limits on separation - Responsible government - merging of the Executive and Legislative - Delegated legislation/regulation – rules made by the Governor General, who is a member of the executive The ‘Washminster’ model British model American Model Representative government Federalism Responsible government Separation of powers Bicameral parliaments Judicial review of legislation Rule of law The senate Common law Judicial review of administrative action Faith in parliaments Parliamentary supremacy in the states The Crown Legislature (Ch 1 & s 1) 1 Legislative power The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. • General o The parliament may only pass laws on specific topics § S 51 lists the areas that the parliament may pass laws on – 39 in total • S 52 lists a further 3 areas o Legislative power should be general § Laws should not be passed to deal with a particular individual • Inconsistency o S 109 – where there is inconsistency, Commonwealth laws will prevail • Exercise o House of representatives (controlled by Government) and the senate (reviews HoR) Executive (Ch 2 & s 61) 2) SEPARATION OF JUDICIAL POWER – DEFINING JUDICIAL POWER Boilermakers 1. The judicial power of the Commonwealth can only be vested in a Chapter III court – this includes State courts vested with federal judicial power under s 77(3) Constitution - This limb will most likely be breached if there is an executive body 2. A federal Chapter III court cannot be vested with anything other than federal judicial power - This limb will most likely be breached if there is a judicial body The problem - The “judicial power” spoken about in Boilermakers has been difficult to define - As a result, the court has attempted to define indicia Definition - ‘The power which every sovereign authority 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. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’ Huddart Parker & Co v Moorehead (1909) The appeals De novo – “from the beginning” – an appeal where there is an entirely new trial conducted; new facts/evidence – it means there is not a binding an authoritative decision Strict appeal – an appeal on existing evidence and established facts, which is based on a legal error – implies judicial power The process 1) What is the nature of the power? Look to indicia a. Power derived from sovereign authority (essential) b. Binding and authoritative decision (essential) c. Controversy about existing legal rights and duties (a ‘matter’) – s 75/76 d. Inter partes – parties will be represented e. Ascertainment of law as it is f. Determination of facts as they truly are g. Performed in a judicial manner i. Appropriate level of judicial discretion ii. In accordance with judicial process 2) What is the nature of the body on which the power is conferred? Will be on facts 3) Applying the Boilermakers rules, will that conferral of power be valid, or invalid? a. 1st limb: judicial power can only be given to a Ch III court b. A Ch III court can only exercise judicial power Indicia 1) Sovereign authority o Body making decision is given that power by law o Arbiters who derive their powers from contract lack sovereign authority § TCL Air Conditioner v The Judges of the Federal Court of Australia (2013) Facts: concerns private arbitration arising from a contract between China and Australia; party tried to resist enforcement of arbitral award on the basis that enforcing this award would be akin to giving arbiters judicial power Decision: there was not judicial power as there were two critical indicia missing: the arbiters lacked sovereign authority, and their decision was not binding ‘of its own force’, but depended on the exercise of judicial power to enforce o Other authorities § Huddart Parker & Co v Moorehead (1909) § A-G (Cth) v Breckler (1999) § R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 2) Binding and authoritative o Courts decisions must bind the parties to their orders o This means that a decision of a body other than a Ch III court cannot be binding and authoritative § Brandy v Human Rights and Equal Opportunities Commission (1995) Facts: There was a challenge by Brandy that a finding of HREOC that Brandy was guilty of breaching the RDA; Brandy argued that the determination/registration system, which required the decision to be registered at the Federal Court, and would become enforceable after a certain period of time Decision: the court found that this granted the commission with binding and authoritative powers; HREOC was not a Ch III court, so this was a violation of the 1st limb of boilermakers • CONTRAST with Luton v Lessels (2002) Facts: An application was to be made to a registrar under the Child Support Act 1989 to make assessment of what amount of child support needed to be paid and also to determine whether that ordinary amount would be unjust and equitable in circumstances; if yes, the registrar would make a departure determination and assess a different amount of child support Decision: not judicial as two indicia missing: there was no controversy about existing rights and obligations, but a determination of future obligation; 2nd there was no binding and authoritative decision as there was a right to an appeal de novo • See also TCL Air Conditioner v The Judges of the Federal Court of Australia (2013) – not binding ‘of its own force’, but depended on the exercise of judicial power to enforce • See also Federal Commissioner of Taxation v Munro (1926) Facts: Executive board of review made determinations about tax liability; the HC could review decision in original jurisdiction Decision: administrative power because it was not binding and authoritative o EXAM – look to the appeal that is permitted! 3) Controversy about existing legal rights and duties / a ‘matter’ o A ‘matter’ is stated in ss 75 & 76 of the constitution, and thus, only a court may rule on a matter