Reading log - Week 6 PDF

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Australian Constitutional Law – Autumn 2020

Reading Log – Questions (Week 6)

A) Judicial Power: 1. Which Chapter of the Constitution provides the High Court with its jurisdiction? S.71, Chapter III of the Constitution • s. 71 provides that Commonwealth judicial power shall be vested in a Federal Supreme Court, called the High Court

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Which section of the Constitution provides for the appointment and removal of Justices of the High Court? S. 72 allows for the appointment of judges by the GG in counsel; s 71(ii) provides for removal of judges by a majority vote at a joint sitting of Parliament for misbehaviour or incapacity; s. 72 (iii) sets a mandatory retirement age for judges at 70. Under what circumstances may judicial appointment to and removal from the High Court occur? Appointment: S 72 of the constitution requires that the justice from the high court shall be appointed by the Governor-general in council Removal: S 72 of the constitution requires the removal on the ground of proved misbehaviour or incapacity on an address from both house of the Parliament. Removed by the Governor-general in council.

2. In what circumstances will the Court be prepared to perform ‘surgery’/reading down or severance on constitutionally invalid legislation? When a law is found to be unconstitutional, the plaintiff can seek for: i) A declaration of invalidity: James v Cth [1939] HCA 9 - 62 CLR 339; Croome v Tasmania [1997] HCA 5 – 191 CLR 119; or ii) Reading down and severance: Victoria v Cth (Industrial relations Case) (1996) 187 CLR 416 ; Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) 124 CLR 468. Read down: • The court may read down and sever offending legislation to the extent of the inconsistency, to give power to parliament’s intention: s. 15A Acts Interpretation Act 1901 (Cth); Victoria v Cth (Industrial relations Case) (1996); • There are strict limits to the effectiveness of severability – e.g. the complexity of legislation: Concrete Pipes Case (1971); Surgery: • If the legislation is mostly bad, the Court will not perform ‘plastic surgery’ and the entire Act will be declared invalid: Kirby J in, NSW & Ors v Cth (Workchoices) [2006] HCA 52; 229 CLR 1. 3. Can the parliament enact legislation to change the decision of the High Court in respect to the Constitution? No, because the Constitution is the highest authority.

Australian Constitutional Law – Autumn 2020

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Reading Log – Questions (Week 6)

The original jurisdiction of the High Court is constitutionally unassailable by the executive Marbury v Madison 5 US 137 (1803) per Marshall CJ - this is the US case, then confirmation by Australian court in Lange Held that the Supreme Court’s function was to uphold the Constitution Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564: “The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments.”

Can the Parliament enact legislation to change the decision of the High Court in non-constitutional matters? Yes, because the Parliament has the legislative-making power according to chapter I of the constitution 4. What is ‘arbitral power’? How is it distinct from judicial power? Arbitral power is derived from a voluntary agreement by the parties to a dispute to submit their dispute to private arbitration. Judicial power is coercive and public: Zhongshan (2013) (above). 5. How does Tony Blackshield define judicial power? Judicial power is a form of control power, liability or affected rights. Griffith CJ in Huddert, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357: “the words ‘judicial power’ as used in sec 71 of the Constitution mean 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”. TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 found that judicial power was merely: Maj: ‘an exercise of public authority’: at [75]. Chief Justice French and Justice Gaegler: ‘a coercive governmental power, not exercised by mutual agreement between the parties’ (to a decision): at [28]. 6. How is it constitutionally possible for administrative tribunals to continue to exist after all that has been said regarding the exercise of judicial power by non-judicial or executive authorities? They act as a third party solve the dispute – Arbitral power

-Tribunal schemes where parties elect to be bound by the decision of a tribunal – i.e. arbitral power as per Boilermakers: Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83; 73 ALJR 981; 163 ALR 576.

Australian Constitutional Law – Autumn 2020

Reading Log – Questions (Week 6)

-Where a tribunal merely exercises ‘administrative’ power over statutory criteria (as in the case of the Child Support Registrar), as opposed to the determination of substantive rights and liberties: Luton v Lessels (2002) 165 CLR 462. -Where a tribunal regulates an activity – rather than determining its legality: Attorney-General (Cth) v Alinta Limited [2008] HCA 2, 233 CLR 542; 82 ALJR 382; 242 ALR 1.

7. How is it possible to delegate judicial power? It is for this reason that Commonwealth tribunals must not exercise judicial power. Civil tribunals generally will not comply with this test. The National Native Title Tribunal only has powers to mediate and arbitrate. The Superannuation Complaints Tribunal reviews decisions as to entitlements regulated under Commonwealth legislation. In some respects its activities may be compared with the way Commonwealth employees' compensation and social security decisions are reviewed. 8. What is persona designata and how does it relate to delegated judicial power? A federal judge may validly exercise non-judicial functions, provided those functions are appointed to a judge, individually, as a designated person (persona designata) under the Act or by the executive: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. Exception to the boilmaker’s case, the judge can exercise the non-judicial function under the Act or the executive. •

A legitimate exercise of persona designata requires that: i) The judicial officer is named in the legislation; ii) Consent of the individual judge; and iii) That the appointment is not incompatible with judicial function and responsibilities: Grollo v Palmer [1995] HCA 26.

9. How does it relate to the incompatibility doctrine? • • •

The incompatibility doctrine says that any power that is incompatible with the exercise of judicial power is void and unconstitutional: Kable. Appointments to positions of persona designata are subject to the incompatibility doctrine from Kable v DPP [1996] HCA 24 (discussed below); Judges cannot be appointed persona designata in circumstances where it would interfere with their power as judges: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. What, according to Mason and Deane JJ in Hilton v Wells and McHugh J in Grollo v Palmer, is the impact of the persona designata doctrine on democracy and civil liberties? Do you agree and why? Mason and Deane JJ: The answer is that the independence of the federal judiciary

which is protected by the Boilermakers' Case will be preserved in a substantial way if, in accordance with the principle expressed by Dixon J. in Meyer, we continue to acknowledge that Parliament may confer non-judicial functions on a federal judge only where there is a clear expression of legislative intention that the functions are

Australian Constitutional Law – Autumn 2020

Reading Log – Questions (Week 6)

to be exercised by him in his personal capacity, detached from the court of which he is a member. Indeed, it may be arguable that, conformably with the underlying concept of the separation of powers, it is beyond the power of the Parliament to attach to the holding of judicial office as a member of a Ch.III court an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of that court. Indeed, the contrast between the requirement of such arrangements in the case of a judge of a State or the Northern Territory Supreme Court and the absence of any such requirement in the case of a judge of the Federal Court or the Australian Capital Territory Supreme Court underlines rather than undermines the conclusion that the imposition of the function upon a judge of a court whose jurisdiction is a matter under the direct control of the Parliament was seen and treated as involving no more than an expansion of the duties of the judge as a member of the relevant court in his capacity as such. To the intelligent observer, unversed in what Dixon J accurately described - and emphatically rejected - as 'distinctions without differences'(88), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade. Mchugh J: The reason is that the exercise of administrative power that is involved in

authorising the issue of those warrants is incompatible with the exercise of the judicial functions vested in persons who are judges of a federal court. 10. What is legislative ‘usurpation and interference’? When the legislature attempts to pre-determine or change the outcome of an individual case (e.g. Kable); How were these concepts relevant in Chu Kheng Lim? The government tried to put the people, refugees from Cambodia, to the detention centre. Chu Kheng Lim - It was ‘plainly beyond power’ to involuntarily detain citizens upon a simple extrajudicial determination by the executive and this also deprived courts of judicial power. Taken together, what is the significance of the Kable and Chu Kheng Lim cases for human rights in Australia? Gaudron J: ‘A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned, purports to derogate from that direct vesting of judicial power and

Australian Constitutional Law – Autumn 2020

Reading Log – Questions (Week 6)

to remove ultra vires acts of the Executive from the control of the Court. Such a law manifestly exceeds the legislative powers of the Cth and is invalid’ [36]. The freedom from unlawful legal process and incursions upon liberty is derived from the English revolutionary authority of Lord Coke (habeus corpus) and the ‘ancient common law’. Maj: judicial power does not apply to ‘non-citizens’ or aliens; Chu Kheng Lim and Kable represent a new constitutional jurisprudence under Ch. III, which constrain all laws that diminish individual liberty 11. What is preventative detention? i) The legislation did not single-out individual offenders (even though the Minister had singled-out the offenders in the 2nd reading speech) Baker v The Queen [2004] HCA 45; Fardon v AG (QLD) (2004) 223 CLR 575); and ii) Some amount of judicial discretion was retained in allowing courts to change the outcome (even though the criteria were impossible for an applicant to meet in Fardon);

How did the majority in both the Baker and Fardon cases distinguish the constitutional legality of the respective State legislation in each case from the principle established in Kable and Lim? Based on Kable it was argued in Baker that the new rules were invalid. The argument was unsuccessful with only Kirby J dissenting. His arguments were twofold: 1. The category of persons who had non-release recommendations was small and defined and therefore it could be said the legislation was directed at a particular individuals. 2. ‘Special reasons’ was too vague and open to arbitrariness. Regarding Argument 1:  Gleeson J: The selection was not arbitrary and the criterion was not irrelevant.  McHugh, Gummow, Hayne and Heydon: ‘it could not be said that the appellant was the sole and direct target of the 1997 Act’.  No guarantee of equality in the Constitution: see Leeth. Regarding Argument 2:  Gleeson: there is nothing unusual about legislation that requires a court to find special reasons or special circumstances.  McHugh, Gummow, Hayne and Heydon: ‘It is important …in construing such a broadly expressed conferral of authority that it is to be exercised by a court, not by an administrator’.  Since there the opinion was that there was nothing about the provisions that overstepped resulted in a breach of separation of powers no further consideration of Kable was needed.

Federal System - Fardon  Gummow: similar federal scheme would not be Constitutional since it was based on criminal propensity not a crime committed. Kirby agreed.

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Reading Log – Questions (Week 6)

Hayne argued that the line between detention that is punitive and detention that is not was not as clear as Gummow had made out and that therefore it might be within appropriate judicial power to detain people for the protection of society. McHugh argues that Kable does not assimilate State courts into the federal system. Integration is not unification. What was Kirby J’s position in Fardon? The HCA (Kirby J dissenting) found no breach of the Kable principle but Gummow J found that a similar scheme at Cth level would have been unconstitutional. Kirby (in dissent): In this country judges do not impose punishment on people for their beliefs, however foolish or undesirable they may be regarded, nor for future crimes that people fear but which those concerned have not committed. With which position do you agree and why?

12. What is a control order? Control order is contained the personal identity in tracking devices, etc. It is about 12 months and can be renewed by the police. The potential scope of control order ranged from minimal instructions on individual freedom, to significant prohibitions, to significant prohibitions and ultimately to extreme deprivations of liberty. How did the majority in Thomas v Mowbray distinguish the constitutional legality of control orders from the position of the Court in Kable and Lim? • • •

The HCA (Gleeson, Gummow, Callinan, Crennan and Heydon JJ) rejected the challenge. Control orders were found to be a valid exercise of the defence power s. 51 (vi). Gleeson CJ, Gummow and Crennan JJ compared control orders with other procedures like bail and AVOs and found that these orders were no less judicial in character. Gleeson CJ: control orders are not exclusively executive in nature. They conferred judicial power. They are heard in open court and subject to a court’s discretion.

13. How might the appointment of ‘acting judges’ impair the impartiality, independence and integrity of judicial power? Increased executive power over criminal process, secrecy and minimal judicial oversight are all factors which might interfere with institutional integrity and decisional independence. Abusing power What did a majority of the High Court say about this in Forge v ASIC? The casual appointment of a judicial officer does not interfere with the ‘institutional integrity’ of a Ch. III court Do you agree?

Australian Constitutional Law – Autumn 2020

Reading Log – Questions (Week 6)

14. How might secret evidence (disclosed only by the executive to the judiciary in the absence of a criminal defendant) impair the institutional integrity of a Ch. III Court? What was different about the facts in International Finance Trust Co v NSW Crime Commission to the facts in Gypsy Jokers v Cmr of Police; K-Generation v Liquor Licensing Court; and Ass. Cmr Condon v Pompano, which led the High Court to uphold the Kable doctrine in the International Finance Trust case? 15. According to French CJ in SA v Totani, what are the ‘three overlapping assumptions’ that can be made in respect to Ch. III? French CJ found that there are three overlapping assumptions about Ch III: i) universal application throughout the Cth of the rule of law; ii) the courts of the States have federal jurisdiction; iii) the defining characteristics of courts are their independence, impartiality, fairness and adherence to open court principle.

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What is ‘decisional independence’? French CJ and Hayne J broadened the reading of ‘decisional independence’, saying that an adjudicative process or decisional independence does not necessarily legitimate institutional integrity … afterall, there was an adjudicative process available to the judiciary in Kable. How did this concept arise in Wainohu v NSW?

16. Which courts are said to have ‘supervisory jurisdiction’? All courts and tribunals are subject to the supervisory jurisdiction of Federal Courts: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1. Why, in Kirk v Industrial Court of NSW, did the High Court refer to this principle? Do you agree with the invocation of Ch. III power in this case?...