Separation of Judicial Power PDF

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8(2) - Separation of Judicial Powers – State

1. Commonwealth Constitution does not expressly mention the judicial power of the States nor States courts, it was long assumed that Constitution impsoed no limitations. 2. Kable principle1 -

s5 of the Community Protection Act 1994 (NSW) – detention of a person – s3 limited the potential application of Kable

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Kable was detained again upon Levine J after the expiry of sentence

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Kable argued that Act was invalid (HC 4:2 agreed)

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McHugh J : doctrine of incompatibility

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Majority found that a notion of constitutional separation of judicial power exists at State level.

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The judges stated that State legislatures cannot confer powers on State Courts which would undermine their independecen from the political branches of government.

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Various judges emphasised that “public confidence” must be maintained.

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Crucial aspect: the court maintains independence and freedom from political control.

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McHugh J then focused on whether a law impairs the “institutional integrity” of those Courts: prohibits the investiture in State Courts of powers that undermine their II.

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“public confidence” does not refer to public acceptance of the relevant measure but the idea that investiture relevant powers sin a court will undermine public confidence.

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Kirby J dissented and found that s 13 of the Act is invalid under Kable principle: 5 features repugnant to Chap III:

3. Persona designata and State judges -

Kable test – incompatibility – resembled application of the PD exception

1 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

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Wainohu was the first case – non-judicial pwoers conferred on “designated serving judges” under state laws.2

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Concerned a regime for judicially imposed control orders against declared organisations.

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This power is vested in an eligible judge, Supreme Court NSW

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(6:1) the scheme is invalid , Heydon J (dissenter)

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Majority indicates that the principles on state judges are similar to federal level

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French & Kiefel JJ – declaration without reasons – invalidity (230)

4. Required characteristics of State Courts -

G, H, C JJ (76): it is beyond the legislative power of a State to alter the Constitution or character of its Supreme Court

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State legislatures may not remove the jurisdiction of the Supreme Court to review and overturn lower court decision afflicted by “jurisdictional error”, as opposed to non-jurisdicrional error, as such removal would alter a defining characteristic of Supreme Courts contrary to Chap III.

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Forge concerned a challeneg to the appointment of acting judges in NSW. Acting judges do not enjoy tenure, unlike permanent J.

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G,H,C JJ (85): How would the particluar number of acting judges that would compromise the II of the court to be fixed?

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Kirby dissented by adpting global approach (102) concluded at (94-5)

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Kirby J found that the practice of appointing acting judges had become so extensive that it altered the Institutional structure – breach Kable.

5. The invenstiture of judicial power in non-judicial bodies at the State level -

Kable’s ratio does not place any limit on the ability of State Parliaments to vest non-judicial bodies with judicial power.

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Key issue of Kable: maintenance of public confidence in the independence of the judiciary and the integrity of the SUPREC as a vessel

2 Wainohu v NSW (2011) 243 CLR 181.

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No high court case since Kable has yet tested the bounds of state government powers to detain or restrict liberty without any involvement of judges.

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DPSOA – “public interest declaration” – prolong the detainment 3

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The Court held: power is inseparable from the power to make a public interest declaration ( 34-5)

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The Court concluded that the amendments were invlaid ( 41-2) even though they directly concerned powers vested in the executive rather than courts. 4

6. SUMMARY A. States can prima facie vest State courts and judges with non-judicial powers. B. States cannot vest those courts and judges with powers that undermine, or otherwise enact legislation which undermines, the II of those courts if those courts are capable of being vested with federal jurisdiction under Chap III. C. Wainoho indicated that the doctrine of SOP at the State level was becoming equal to that in federal sphere. -

The giving to the Executive an advisory opinion upon a qn in law.

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Activity by a federal judge as persona designata was incompatible with the holding of that office; thus a fortiori were the function conferred on a federal court. D. There are different starting points when considering SOP at federal and state levels. States can in fact confer non-judicial powers on State courts, Commonwealth cannot, unless an exception applies. E. Finally, no HC has yet constrained the ability of States to vest judicial power in non-judicial bodies, a power again forbidden to the Commonwealth.

3 Attorney-General (Qld) v Lawrence [2013] QCA 364, see also Fardon 4 Attorney-General (Qld) v Fardon [2013] QCA 365....