Section 3 - Notes PDF

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SECTION 3 Chapter III

1. What are the two main consequences to the strict separation of judicial power provided for by the constitution?

Separation of power: the judiciary is separate from the executive – meaning they cannot be influenced or pressured by the executive and legislature. First consequence: - Only courts established in accordance with Chapter 3 can exercise judicial power (wheat case) o Wheat case: there cannot be another set of courts which neither Federal or state courts invested with federal power o Boilermakers case: judicial power must be exercised by a chapter 3 court Second consequence: - Courts established in accordance with Chapter 3 cannot exercise non-judicial power: Boilermakers Case

2. Explain the Kable principle and its operation. Kable Case: established that state courts that are vested with federal power/jurisdiction cannot exercise non-judicial power ( in other words, the incompatibility doctrine) e.g state supreme court - The principle has not been regularly applied since it was established

Development ( further statements about what this principle actually means) - Baker: distinguished themselves from the Kable decision - Gypsy Jokers: stated that the principle required impartiality and separation from stat courts that exercise federal jurisdiction Principle in basic terms: state courts have to be independent and impartial just as federak courts must be, ONLY if that state court is vested with federal jurisdiction = Kable Principle

3. Briefly explain the exceptions to the strict separation of judicial power.

Persona designta: -

where a judge of chapter 3 court is vested with power that is not necessarily judicial - Hilton v wells, Wilson o this happens when the judge is assigned to perform functions in their personal capacity, e.g. admin functions o but keep in mind the incompatibility doctrine: they cant perform functions that impact their capacity to be impartial or fair as a judge: Wilson

Delegation: - the giving away of tasks to people who are not vested with judicial power, but the court must still effectively maintain control of judicial power Harris v Caladine - two conditions: delegation can’t be to an extent that the judges do not constitute the court and must have main responsibility of the court Executive Detention: - involuntary detention for mental illness/ disease - contempt of parliament - refugee or aliens - Courts martial

4. The NSW Government is becoming concerned with the increase in violent protests that are occurring throughout the state. These protests are run by antiimmigration organisation ‘Home Grown Australians’, who often physically attack members of the public passing by that express distaste for their message. The NSW Government decides to enact the following: Crimes Amendment (Violent Protests) Act (2019). Section 17 reads: Any NSW Court Magistrate must issue a Community Control Order to a person who has been bought before the court in relation to a crime committed in the course of a protest organised by ‘Home Grown Australians’, if that magistrate is satisfied that person is a member of that organisation. Community Control Order and ‘Home Grown Australians’ are terms defined elsewhere in the Act. After this Act is passed and in force, Jim Smith is charged with manslaughter after he attacked a member of the public during a ‘Home Grown Australians’ protest in Newcastle. Jim Smith is brought before the NSW Supreme Court and the Judge is required to issue a Community Control Order.

Advise of the Constitutional validity of s17 of the Crimes Amendment (Violent Protests) Act in relation ONLY to Ch III of the Constitution. The judicial power is separate from other limbs of government – through the constitution itself, can also be seen in: only courts established through chapter 3 can exercise judicial power: wheat case - Here this is important as the executive and legislature are trying to determine how the judiciary exercised its power – e.g. through the CCO’s Because we are in the NSW SC, we will have to look at the Kable doctrine: the NSW SC cannot be influenced by the executive etc. and must be independent and impartial. Does it offend the Kable doctrine? Here the executive and legislature are trying to determine how people will be sentenced – there is also the use of the word ‘must’ – gives complete discretion to others outside of the judicial power who enacted the legislation. - This factual scenario is analogous to the scenario in SA v Totani where the courts were require to issue a CCO on application of the police if they were satisfied that a person before them was apart of a certain motorcycle club o The court held that this offended the Kable doctrine as it impacted the courts ability to be impartial and independent – the executive was overstepping their power limitations. Chu Keng Lim: the court doesn’t like being told who to sentence people = effectively how to exercise the law – therefore if the executive does do that it is overstepping its power

Conclusion: - Most likely the law will be invalid, on the basis that it offends the Kable doctrine in its application to NSW SC. - The act could be read down to apply to local and district court magistrates only.

Intergovernmental Immunities

1. What case states that the Commonwealth can bind the States? What limits have been placed on this power by later case law? -

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Engineers case – rejected the implied immunities and reserved powers doctrines. Commonwealth can apply to state governments in their capacity as an employer Melbourne corporation case – the court confirmed that the constitution acknowledged the continued existence of the states and therefore the commonwealth could not enact legislation which: o Discriminated against states o Fundamentally hindered that states capacity to function as a government entity What is discrimination against states? o Queensland Electricity Commission v Cth  Involves the singling out of states for differential treatment  Imposition of special burdens or disabilities  Not every law which deprives the states of a right, privilege or benefit which it enjoys will amount to discrimination What does ‘fundamentally hinder a states capacity to function as a government entity’ mean? o Queensland electricity commission v Cth  Destroy or curtail the continued existence of the states or their capacity to function as governments o Australian Education Union  Determine the number and identify of employees, the term of employment, or employees to be dismissed or  Determine the number and identity of those to be engaged at the higher levels of govt

2. Can the states bind the Commonwealth? Explain the debate regarding this question and the current accepted approach. -

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Engineers case – the court suggested (obiter) that the principle would have reciprocal operation ( in that the states could bind the commonwealth) this was applied in Uther v FCT and Perrie v McFarlan however note the dissent of Dixon in Uther v FCT stating that the commonwealth was in a special position in the Australian Federal as a dual system and that “you do not expect to find either govt legislating for the other”. Argued that the supremacy belonged to the commonwealth on the account of the affirmative grant of legislative power in the constitution. Cigamatic – held that the states were not permitted to interfere with the exercise of ‘federal fiscal right ‘and that the commonwealth is in conflict with its subjects, the states cannot interfere.

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Henderson’s Case – the court gave leave to hear arguments on whether Cigamatic should be overruled: o the court did not overrule Cigamatic but instead explained and reinterpreted the principle o states do not have power to regulate the capacities of the commonwealth however that they may regulate the exercise of the capacities. o Note – not unanimous and unsettled o “affected by” principle in Commonwealth v Bogle – where the commonwealth enters into a transaction it will be affected by the general law of the states.

3. The Commonwealth Government wants to ensure that all Australian’s interests are represented within politics. In order to foster continuous diversity, they propose to enact legislation that requires all Australian State politicians to retire from State parliament after they have been elected for 2 terms in office (if they are at all). The Commonwealth seeks your advice as to whether this would be a valid piece of legislation with regards to constitutional matters. Advise the Commonwealth in relation to the issue of intergovernmental immunities.

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Commonwealth is seeking to bind the states Melbourne Corporation Case – commonwealth enact laws which: o Discriminate againt states; o Fundamentally hinder the states capacity to function as a government To fundamentally hinder the states capacity to function as a govt means to destroy or curtail such capacity – Queensland Electricity Commission Australia Education Union – but see above for what the commonwealth could not regulate On the basis of Australian education union an analogy can be made as the commonwealth is attempting to regulate the terms of the employment of politicians ( which it cannot do) Arguable that by limiting the terms of politicians the capacity of the states to function as a govt is curtailed as it reduces the longevity of politicians and their ability to govern Therefore the law is invalid by operation of the Melbourne Corporation Case principle which limits the ability of the commonwealth to enact laws for states

Section 92 – Freedom of interstate trade, commerce and intercourse

1. What is the test that has come from Cole v Whitfield? Test: -

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Is he law discriminatory against interstate trade? o Either discriminatory on its face or o Discriminatory on its practical effects If so, is it discrimination of a protectionists kind? For example does it: o Grant a commercial advantage to intrastate trade and commerce or o Protect intrastate operations from interstate competition

2. Explain the notion of ‘lawful’ protectionist burdens. Castlemaine Tookeys – (refillable bottle case) – the court held that legislation which is appropriate and adapted to achieved a legitimate legislative purpose may avoid offending s 92 so long as any burden thereby imposed it incidental and not disproportionate to achieving the end. Betfair – the wellbeing of people within one state was not enough to create a lawful protectionists burden, although it may be a fundamental consideration

3. The State of NSW decides it wants to enact legislation prohibiting the sale of strawberries to NSW child-care centres after the recent ‘Strawberry Needle Contamination’ scandal. The NSW State Government wants to protect children after needles were reportedly found in several lunches that were provided to children enrolled in these centres. Child-care centres within NSW only buy their strawberries from Queensland growers, and after an extensive investigation, it was confirmed that the contaminated strawberries were delivered to the child-care centres from Queensland. Despite this fact, the NSW State Government does not want to identify Queensland as the only state prohibited from selling strawberries to NSW childcare centres, as they feel enacting a blanket ban will provide better protection for the children. The NSW State Government concedes it will be temporary legislation (repealed after the culprit behind the contamination has been convicted).

The NSW State Government also hopes that this will boost the local strawberry market, however, maintain their primary reason for creating any ‘strawberry ban’ in child-care centres would be for protection of children within their state. The Queensland State Government learns of the proposed NSW legislation and comes to you for advice on how to challenge it. Is the law discriminate against interstate tarde and offend s92? Cole v Whitfield: - Is he law discriminatory against interstate trade? o Either discriminatory on its face or practical effect  Not discriminatory on its face as it is a blanket ban against both interstate and intrastate  Argue that the law is discriminatory in practical effect as it affects the QLD traders who sell strawberries to childcare centre  Therefore yes - If so, is it discrimination of a protectionists kind?  NSW thinks that it will grant a commercial advantage to NSW strawberry traders (however this is not their primary purpose)  Primary purpose is to protect children, see Betfair where the wellbeing of persons within a state a fundamental consideration was as to whether a lawful protectionist burden exist but that this was not enough on its own.  Castlemaine Tooheys – it is appropriate and adapted to achieving a legitimate purpose and is incidental and not disproportionate  Legitimate purpose? Protection of children (wellbeing of people – vulnerable)  Yes the protectionist burden is incidental to the purpose  Appropriate and adapted? Maybe not – it applies to all states although the danger exists only in QLD trade, yes – it is a temporary ban and by applying to all states they afford greater protection against the threat. 

Conclusion: on the basis of betfair the wellbeing of people is not enough to allow for a protectionist burden...