Lecture 2 Separation of Powers

Three Elements of Judicial Power

These elements are set out by Griffith CJ in the Huddart Parker case.
Controversy or Dispute
There must be some point that is in question and is unresolved between two parties. There
must be a difference or dispute, and it must be brought otherwise than by the tribunals
own motion. Furthermore, a person bringing a suit must be entitled to do so.
Impact on Existing, Basic Rights
The controversy must be related to a pre-existing law, as the judiciary cannot create new
rights and obligations.
Conclusiveness
The decision must settle the controversy, and allow the tribunal to enforce its own
decisions.
Suri and Jonathon add a fourth element:
Non-Consensual
The tribunals authority is not derived from an agreement between the parties in dispute.
Separating Judicial Power
The High Court has set out detailed rules to separate judicial power from non-judicial (that
is, legislative and executive) power. The rules govern both who can exercise judicial power
and how it may be exercised.
Prohibitory Rules
The prohibitory rules prohibit certain ways of allocating judicial power.
The basic rule here is that federal judicial power may generally only be exercised by properly
constituted courts (Chapter III courts) and Chapter III courts may not normally exercise
non-judicial powers.

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Permissive Rules
The permissive rules recognise certain limited exceptions to the prohibitory rules. Nonjudicial bodies may exercise some limited judicial power. Chapter III courts may exercise
limited non-judicial power in special cases.
Exceptions to the Boilermakers case

Who can Exercise Judicial Power

Federal judicial power cannot be vested in a body not designated in s 71.
The courts listed in s 71 are:

The High Court of Australia;

Other federal courts created by Parliament;

State courts vested with federal judicial power by Parliament.

This exclusive interpretation of s 71 dates to the Wheat Case (1915). It was reiterated in the
Boilermakers Case (1956). The rule was confirmed by the Privy Council in Attorney-General
(Cth) v Queen (1957).
The Rule in Alexanders Case
Federal judicial power must be invested in a court in the strict sense of the term. This is a
body whose functions are primarily judicial in character. The bulk of powers must be judicial
powers.

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The Rule in the Boilermakers Case

This was an Industrial Relations case. The legislature was trying to set up Arbitration
commission for industrial disputes, which was given power to make and impose awards. The
commission was also able to enforce pre-existing laws, vesting non-judicial power and
judicial power in one body. This was ruled to be constitutionally illegitimate.
The exception is that a federal court can exercise non-judicial power where it is incidental to
judicial power.
Non-judicial powers cannot be vested in the High Court or other federal courts. Alexanders
Case is therefore now restricted to state courts exercising federal judicial power.

Chapter III Courts

Under s 72, federal courts exercising judicial power must be correctly constituted according
to the procedural requirements and guarantees of judicial independence. They must qualify
as Chapter III courts.There is no discretion to the executive to alter the tenure. However,
judge can be removed from office by the parliament, by special vote, for incapacity or
proven misbehaviour. The remuneration cannot be reduced, but can only increase to reflect
inflation, etc.
The requirements of s 72 are as follows:

Judges are appointed by the Governor General in Council.

Judges must be appointed with tenure until the age of 70, when they must retire.

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Judges are removable only on a special vote of both Houses of Parliament on

grounds of proven misbehaviour or incapacity.

The remuneration of judges must not be reduced during their term of office.

These requirements are designed to safeguard judicial independence.

Alexanders Case
Alexanders Case illustrates this principle. High Court judges were appointed for seven year
renewable terms to the Arbitration Court. The question arose whether this mode of
appointment contravened s 72.
Griffith CJ thought the arrangement was valid. Four other judges failed to resolve the issue.
However, Barton and Powers JJ disapproved. They said a judge already holding tenure
cannot be appointed to another court unless she or he also enjoys tenure on the second
body. The view of Barton and Powers JJ seems preferable. Judges should not be hired and
fired from courts at the whim of the executive.

Delegation of Judicial Power

A court may not abdicate federal judicial power, but may delegate its power under certain
conditions. See Harris v Caladine (1991). The High Court held that the Family Court could
delegate judicial power to a non-judicial officer (the Registrar).
A majority (Mason CJ, Deane and Gaudron JJ) required two conditions for a delegation to be
valid. The delegation must not be so extensive that the judges no longer constitute the
court. The decisions of the delegates must be subject to review or appeal by the judges on
both facts and law. The two other judges (McHugh and Dawson JJ) went further and
required provision be made for a de novo rehearing before judicial power could be
delegated.

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Composition of State Courts

The position differs with regard to state courts. Kotsis v Kotsis (1970) held that state courts
exercising federal power cannot delegate that power to a Registrar. This was confirmed in
Knight v Knight (1971).
However, Kotsis and Knight were overturned in the HCF Case (1982). The federal Parliament
must take state courts as they find them. There is no reason why a non-judicial officer such
as a Registrar may not form part of a state court. State courts may include acting judges
with limited terms, but independence and impartiality must be maintained: Forge v ASIC
(2006).
Ex post Facto Laws
Parliament cannot require the courts to enforce bills of attainder or dictate the way courts
exercise judicial power.
The leading case is Polyukhovich v Commonwealth (1991). That case concerned an Act
designed to retrospectively punish war crimes committed during the Second World War.
There is no blanket ban on retrospective legislation. However, a law may be invalid if it is
clearly aimed at a specific person and therefore amounts to legislative judgment being
passed after the fact.
The High Court in Polyukhovich upheld the war crimes legislation, since it left enough
discretion to the courts not to violate the ban on bills of attainder.
Kable Principle
State courts vested with federal judicial power may not hold functions incompatible with
that power.
See Kable v DPP (1996). Kable involved a statute directed at a named person authorising the
New South Wales Supreme Court to issue a special detention order if necessary to prevent
violence or protect others.
The High Court held that this function was incompatible with the exercise of federal judicial
power by the Supreme Court. The power makes the court a puppet of the executive. Public
confidence would be undermined.

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The Kable principle has been revived in a series of recent High Court decisions, including
Fardon v Attorney General (Qld) (2004).
Fardon concerned the Dangerous Prisoners Act 2003 (Qld), which authorised the
Queensland Supreme Court to make continuing detention orders for sexual offenders
nearing the end of their sentences. Six High Court judges upheld the statute. The main point
of distinction from Kable was that the Act did not apply only to a named person, but allowed
the Supreme Court to make an independent assessment. Kirby J dissented. He thought the
Dangerous Prisoners Act compromised judicial integrity.
Institutional Integrity
The Kable principle has been revived in a series of recent High Court decisions.
South Australia v Totani (2010) concerned organised crime legislation allowing the state
Attorney General to declare proscribed organisations. If a person is found to be a member
of such an organisation, the Magistrate must make a control order upon application by the
Commission of Police. The High Court held that the legislation left no discretion to the
judge. It was incompatible with judicial independence and contravened Kable.
See also Wainohu v NSW (2011).

Judicial Power Outside Chapter III

Judicial power falling outside Chapter III cannot be vested in the High Court or other federal
courts. See Re Wakim (1999). That case involved cross-vesting legislation giving federal
courts state judicial powers and vice versa. It was held that federal courts cannot exercise

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state judicial power, as this type of judicial power falls outside the scope of Chapter III.
However, state courts may exercise federal judicial power.
This ruling is highly inconvenient for litigants and has been widely criticised.
Re Judiciary Act is sometimes viewed as illustrating the same principle, but the power in that
case was strictly non-judicial in character. Can the High Court have an advisory power to the
Attorney-General? The High Court ruled no, as it is not the exercise of a judicial power
because there is no controversy. Seen as the same rule of Re Wakim.
Inherent Jurisdiction
Parliament cannot remove jurisdiction conferred upon courts by the Constitution. The right
to appeal to High Court with leave (conferred in s 73) cannot be abolished: Cockle v Isaksen
(1957). The High Courts original jurisdiction under s 75 cannot be removed: Lim v Minister
for Immigration (1992).
Lim concerned s 54R of the Migration Act 1958 (Cth), which said a court is not to order the
release from custody of a designated person. A majority invalidated the section, as it
removed inherent jurisdiction of the High Court to review executive decisions.

Permissive Rules
Persona designate Rule
Non-judicial power can be vested in a federal judge in her or his personal capacity. Hilton v
Wells (1985) established that the non-judicial power to issue warrants for phone taps may
be conferred upon judges in a personal capacity. The Court noted that whether a power is
vested in the court or in judges on a personal basis is a matter of statutory construction.
The principle was revisited in Grollo v Palmer (1995). The High Court imposed two
conditions on the persona designata rule. Consent: Exercise of non-judicial power requires
consent of the judge. Compatibility: The function must be compatible with the judges
capacity to perform her or his judicial functions, taking into account both the time required
and the nature of the role.

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If the non-judicial role would undermine public confidence in the judges independence, the
delegation will not be allowed.
Courts Martial
Judicial power with respect to military offences may be exercised by military tribunals not
conforming with Chapter III.
See Re Tracey (1989). The High Court in Tracey noted that the same act may be both a
military offence and a civil offence. Only the former offence may be tried by courts
martial. A four judge majority held that military offences must have a demonstrable
connection with military functions.
The High Court has wavered between three views on why military tribunals are
constitutional. Military tribunals exercise judicial power, but not 'the judicial power of the
Commonwealth' within s 71. The power exercised by military tribunals is not judicial power,
but non-judicial power. The power is 'the judicial power of the Commonwealth', but falls
under an exception to the usual rules.
The first view prevailed until Lane v Morrison (2009), when a majority of the High Court
endorsed the second view.
Court Administration
Courts may make rules of procedure governing the administration of justice. This is
technically a legislative function, as it involves creating new rules.
This power is historically a key aspect of the judicial role. It covers procedural and
administrative matters that are incidental to the exercise of judicial power. See R v Davison
(1954), Dixon CJ and Tiernan J.

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