LWB233 Constitutional Law Murray McCarthy

Week 12
FEDERAL JUDICIAL POWER
The doctrine of the separation of powers is based on the idea that, to put it simply, the Parliament
makes the Laws, the Executive executes the law and the function of the Judicature is to interpret and
apply the law.

Section 76 and 77 of the Constitution enables the Commonwealth to vest Federal jurisdiction in the other
federal courts the Parliament may create under s.71 (including currently he Federal Court, Family Court
and Industrial Relations Court)

Though the doctrine regarding separation of powers in the Cth Constitution is sometimes referred to as
the Boilmakers doctrine, it has 2 main aspects which were developed in separate cases
1. Federal Judicial Power must be vested in a federal Court which has tenure as defined by s.72.
2. Non-Judicial Power can be vested in a Federal Court, ONLY as long as it is auxiliary or incidental to
Judicial Power.

ELEMENT 1: Federal judicial power must be vested in a Court.

Does the Body in question have s.72 tenure?

A Federal Act that vests judicial power in something other than a Ct is invalid.
Therefore ONLY Chapter III courts can exercise Chapter III power.
A Court is recognised by its s.72 tenure or in the case of a State Ct vested with power under s.77(iii).

This point was emphasised in:

Brandy v. Human Rights and Equal Opportunity Commission

- The Court was unanimous in holding that sections of the Racial Discrimination Act 1975 (Cth) were
invalid b/c those sections had the effect of conferring judicial power on the Human Rights and Equal
Opportunity Commission.
- The sections provided that, where the Commission decided that an act of racial discrimination had been
committed, that decision could be registered with the federal court and would take effect as if it were an
order of that court unless the court reviewed the decision. The courts review was not based on new
evidence except with the leave of the Ct.

Huddart Parker
The Comptroller of Customs had a power to demand answers to questions about importation.
HP, a shipping coy, challenged the constitutionality of the power vested in that comptroller because the
comptroller of Customs does not have tenure until the age of 70 (in those days life).
HELD:
The power to demand answers to questions was held to be valid because it was only preliminary to Ct
action, it was not a judicial action, but the Ct remarked in Dicta that if it had been judicial then it could
not be vested in the comptroller.

Wheat Case
The case concerned the Inter-State Commission, a body set up under Federal legislation pursuant to s.101
of the Constitution and given powers to determine disputes involving interstate trading and commercial
issues and to issue certain remedies including an injunction.
The Commissioners wee given 7yr terms
The validity of this structure was challenged on the basis that the Inter-State Commissions powers of
adjudication under s.101did not extend to the exercise of Judicial Power of the Cth which could only be
exercised by Chapter III courts.

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- It was submitted that the power to issue an injunction was a type of judicial power which could not be
exercised by the Commission.
Held
- HC said they knew that there were powers in ss.101, but s.71 says judicial power is vested in Courts with
s.72 tenure and the powers in ss.101-104 can only be powers that are ancillary to the other powers.
The HC held that a full grant of powers of adjudication to a body with 7 year terms was invalid even
though it looked like it was complying with the Constitution.

Alexander
concerned the Court of Conciliation and Arbitration, set up under s.51(35) and for many years the same
body heard industrial disputes, handed down awards and if an award was breached, punished breaches.
HELD:
- That this was not a real Court b/c the judges only had 7-year appointments.
- This case entrenched the proposition that the Cth Parl could confer judicial functions only on the Cts listed
in s.71.
- The decision also established that a central characteristic of a federal court created by the Cth Parl
was the tenure which provided for the Cts members.

ELEMENT 2: A Federal Ct must not exercise non-judicial

power, except if it is auxiliary or incidental to judicial
power.

Once s.72 tenure is found, a Federal Ct must not exercise non-judicial power
Advisory Opinions Case
In the Judiciary Act, the Parliament had inserted a section which said that the HC could be asked to give an
advisory opinion on the validity of legislation.
Parl later passed the Navigation Act and the A-G wasnt sure whether it was totally valid, so he went to the
Parl to get an advisory opinion.
HELD:
Federal Cts can only hear matters listed in ss.75-76.
Here the HC held invalid Pt XII of the Judiciary Act 1903 (Cth).
The part authorised the GG to refer to the HC for its determination any question of law as to the validity of
any Act or enactment of Parl.
The majority of the Ct held that this function, of making an authoritative decision on the validity of
legislation, was judicial; but that it could not be exercised by the HC because it was not part of the judicial
power of the Cth.
The HC concluded that Ch.3 of the Const did not allow Parl to confer power upon the HC to determine
abstract questions of law without the right or duty of any body or person being involved.

Queen Vic Mem Hospital

A Magistrate exercising federal jurisdiction can only be given proper judicial matters by the Federal Parl.
It was about preference to ex-service personnel.
The employer was told to give preference on certain criteria. The parties then had a right of appeal to the
Magistrate and the M was then to make a decision on exactly the same criteria.
HELD:
HC held that the criteria were too broad to amount to judicial power and in DICTA said that non-judicial
functions could be validly granted to a Ct where they were incidents of a strictly judicial power. Here they
held that the non-judicial powers were not mere incidents, they were in fact most of the power.

Boilermakers Case
The Court of Conciliation and Arbitration were given life tenure following Alexander.

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In 1956, after the Ct had been operating for 50 years, a Union challenged the status of the Court. The Ct
was issuing injunctions not to breach awards, as well as making them (which is non-judicial, as an award
lays down a new rule to be obeyed in the future).
HELD:
The Ct, by majority, and later the PC, applied the dictum from Queen Vic Mem that a Ct must not exercise
non-judicial power except where its auxiliary or incidental to judicial power.
Here, the main job of the Ct was to do non-judicial things, and the judicial power was just a small part of it.
- The Unions got what they wanted b/c the awards were still valid and the power to punish them was invalid.
In this case, the so-called Ct of Concil and Arb was primarily non-judicial b/c they spend most of their time
making industrial awards and a small proportion of time enforcing them. Therefore the awards all stay
valid and the power to punish for breach became invalid. The Parl then separated the functions.

So what do you do when you have a body with s.72 tenure that has a mixture of powers? Ask what is
the primary function and declare the others invalid. (But Note element 3.)
Where there is a Ct found to be primarily a Court, the grant of non-judicial power would be invalid.

ELEMENT 3: Conditions on the power to confer non-judicial

functions on Judges

Grollo and Wilson have clarified the basis of the test as to what extra-judicial functions might be vested in
Chapter III judges.
A non-judicial power cannot be vested in a Federal Court, a federal Judge, or a State Supreme Court
exercising federal jurisdiction if that might lead to public doubt about the independence of the
judiciary from executive pressure
It appears that a Chapter III judge MAY be appointed o act in an executive role (eg Royal Commission) or
to exercise executive functions such as the issue of a warrant, and this will NOT infringe the separation of
powers.

Grollo:
- This case was about the power of a judge to issue telephone interception warrants.
- The Court remarked that the conditions on the power to confer non-judicial functions on Judges as
designated persons was two-fold:
1. No non-judicial function that is not incidental to a judicial function can be conferred without the
Judges consent; and
2. No function can be conferred that is INCOMPATIBLE either with the Judges performance of his or
her judicial functions or with the proper discharge by the judiciary of its responsibilities as an
institution exercising judicial power (the incompatibility condition).
The incompatibility condition may arise in a number of different ways:
- Incompatibility might consist in so permanent and complete a commitment to the performance of non-
judicial functions by a Judge that the further performance of substantial judicial functions by that Judge
is not practicable.
- It might consist in the performance of non-judicial functions of such a nature that the capacity of the
Judge to perform his or her judicial functions with integrity is compromised or impaired.
- Or it might consist in the performance of non-judicial functions of such a nature that public confidence
in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his
or her judicial functions with integrity is diminished.
Held
it was held that a judge could be given the power to issue interception warrants only b/c it was voluntarily
accepted.
It could not be forced upon the Court.
If a judge had voluntarily accepted it, it was not incompatible with continuing to exercise judicial
office.

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Kable
they held that State Cts exercising federal jurisdiction (esp. Supreme Cts s.77) are also part of the federal
judicial system and the Grollo principle applied to State laws giving power to State Cts.
Giving a State Ct the power to decide whether a named individual was too dangerous to release (this
Act mentioned applications for the continued detentions of Kable) was likely to reduce public confidence
in the independence and impartiality of the Courts and was therefore invalid.

Wilson (1st Hindmarsh Bridge Case)

Wilson had been appointed to make an inquiry and report on the claims of secret womens business on the
land which was to be resumed from the Hindmarsh Bridge.
Majority of the Ct held that the appointment of a judge to something as sensitive as that was likely to
reduce the public confidence in the impartiality and independent of the Judiciary.

NOTE: Elements 2 & 3 may be addressed together as the Cts will still apply the Boilermakers Case and
then the Grollo Case to test the validity of powers granted to federal Cts (including State Cts) and judges.
Perhaps one day the Grollo test will take over the Boilermakers principle altogether.

SUMMARY
If the body is neither tenured nor a State Ct (or it is tenured but mainly exercising non-judicial power, e.g.
Boilermakers), it CANNOT exercise judicial power.
If the body is a court (i.e. it is tenured and mainly exercising judicial power, or a State Ct with federal
jurisdiction), it can only exercise NON-judicial power if auxiliary and incidental to the judicial power AND
as long as it passes the Grollo Incompatibility test.
1. Are these people called a Court, or are they given tenure for 5 or 7 years when they are not a Ct?
2. Do they have judicial power?

ELEMENT 4: Identifying Judicial Power

There is no exclusive and exhaustive definition but there is a prima facie definition which has several
qualifications.
Prima facie, judicial power involves a directly-enforceable decision as to the pre-existing rights of
parties based on pre-existing law: Alexander, Rola per Rich J., Tas Breweries per Kitto J.

Some powers are inherently judicial, especially the adjudgment and punishment of criminal guilt: J W
Alexander.
Other cases where there is little doubt that there was judicial power:
Powers to grant orders for recovery of possession of land (Silk Bros)
Powers to rule that dismissal of an employee was contrary to an award (Austin) this involves
interpreting an award and must be given to a judge.
Powers to grant injunctions against breaches of an Act (Mikasa) and to commit for contempt for breach
of the injunction (Boilermakers)
Powers to declare invalidity of an Act (Wheat Case)
A power, vested in the executive, to order detention of people, with a section in the Act providing that a
Ct could not order the detainees release from custody (Lim). In Lim the Parliament itself inserted a
section in the Migration Act saying that illegal immigrants were to be detained and no applications
were to be brought to the Ct questioning the legality of their detention. It was held that Parliament
itself was trying to exercise judicial power and the section was invalid.
(In all these cases the Ct was not only deciding pre-existing rights under pre-existing law, but was
applying a penalty or a remedy).

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QUALIFICATIONS
A rigorous application of the prima facie definition would have invalidated many powers granted to
Boards, Tribunals or Court, and the Court has modified its application by considering other factors
in most cases.

What looks like judicial power may be non-judicial if:

1. The decision is not conclusive:

A judicial decision is generally expected to be final and conclusive
Therefore if the decision is expressed to be NOT final and conclusive that my tend towards a finding that
the power is non-judicial.

2. If the decision is not immediately enforceable it is non-judicial and therefore can be

given to a non-judicial body:
Even when a tribunal satisfies the prima facie definition its power is likely to be non-judicial if it cannot
enforce anything on the parties, the enforcement being left to a court.

Huddart Parker
The comptroller could demand that you answer a question.
However, if you did not answer the question, the comptroller could not punish you himself, he prosecuted
you before a Ct for a breach of a relevant section of the Customs Act.

Tas Breweries
if a corporation is engaging in anti-competitive conduct the Trade Practices Tribunal had to decide whether
there was a breach of the Act, and then had the power to authorise the breach of the Act if the conduct
produced a surplus of public benefit over public detriment.
However, if the organisation kept participating in the conduct, the TPT didnt punish it, the TPC had to
separately take the corporations to the Federal Ct to punish them.

3. If it is within an historical exception

The exercise of clearly judicial powers by non-judicial bodies has been allowed on historical grounds
- Courts-martial: Tracey; Ex parte Ryan
- Parliamentary trials for contempt: R v. Richards; Ex parte Fitzpatrick & Browne
- Public service disciplinary tribunals

4. Rights involved are not traditional rights, but a right granted by statute and liable to
be taken away by statute:
Quinn
This case was about the power of a registrar of trademarks to cross a trademark off the register (looks like
judicial power, there were criteria for striking off a trademark, it was applying pre-existing law to pre-
existing fact).
The exercise of this power by a non-judicial body was challenged
HELD:
The HC said that this was all right b/c the point of the separation of powers was to preserve the rights of
individuals, to preserve the traditional rights and liberties, but the right to a trademark is not one of the
traditional rights that people would protest about, its a right granted by statute and it can be taken away by
statute.

5. If the decision involves public and economic policy as well as legal principles it is all
right to give it to a non-judicial body
Tas Breweries Case

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TPA Tas B and others were subject to an order to discontinue some of their price-fixing practices.
The Tribunal had to decide whether there had been a breach of the Act and then to weigh up the public
detriment created by that breach as against any public interest that might exist by allowing it.
HELD:
This was not an exercise of judicial power and therefore could be given to a non-s.72 body.

PDH v. Wills
issues about the accurate and fair operation of the stock market in a takeover battle.

6. If power is one that could reasonably be exercised judicially or non-judicially, and if

Parl gives it to a non-judicial body it expects it to be exercised non-judicially and if it
gives it to a judicial body, it expects it to be exercised in a judicial way: Shell;
Hegarty
- EXCEPT where the HC says it has historically been exercised by Cts:
Davison
prosecution of D for breaches of the Bankruptcy Act after he had voluntarily sought bankruptcy.
His bankruptcy had been granted by a registrar under a section of the Act which said that uncontested
bankruptcies could be granted by the registrar.
HELD:
The HC conceded that it was the sort of power that didnt have to be exercised judicially (Parl could simply
set up an Administrative body), but in this case, they had given the jurisdiction to the Ct and this
jurisdiction had always been exercised by the Cts and if theyve chosen to make some of it judicial, they
cant choose to give bits of the jurisdiction to a non-judicial officer.

What looks a bit like non-judicial power may be validly conferred on a Court/Judge if:
Power is conferred on judge as persona designata (designated person): if it is not conferred on the
Ct but the power is given to a person who happens to be a judge: Hilton v. Wells; Jones;
Grollo
in this case they qualified the rule by saying that a non-judicial power cant be forced upon a judge
of a federal Ct but it can be given to that judge as a designated person if they have voluntarily
agreed to accept it.

But, in Wilson they said that if the role that is given to the judge is the sort of role which would cause
the public to question the independence of this Judge from the executive, then it cannot be conferred on
them.

7. Broad discretion as to remedies is to be exercised in a judicial way:

2 Spicer Cases of the 1950s
giving a Judge of the Industrial Ct a reasonably broad discretion as to remedies where Union laws were
invalid made that Judge exercise non-judicial power.

Cominos
- about the power to make orders about property under the Family Law Act

Talga
- about making corrective orders to contracts under the Banking power
- the Ct has taken a more realistic line and said that if a discretion is given to a Judge, you can assume a
Judge will exercise it in a judicial way.

8. The power is one that could reasonably be exercised judicially or non-judicially:

Bayer Pharma:
- another trademarks case.

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- The registrar could hear an objection to a registration of trademarks (a non-judicial power) then there
was an appeal that could go to the Solicitor-General, or the Supreme Ct or the HC (all with the same
grounds of appeal).
HELD:
- They held that the appeal to the Supreme Ct of the HC was judicial b/c there was a claim of right and
there were objective conditions.
- The appeal to the law-officer was probably valid also b/c words which might otherwise be sufficient to
confer judicial power may be governed by the context as well as by the character of the body or person
upon whom the power was conferred (if they took this view all the time there would be less successful
challenges on the basis of the separation of powers)

Application to cases
Most cases involve either:
- Challenge to the grant of power to a Board (e.g. Tax Review Board), Tribunal (e.g. Trade Practices
Tribunal), a Panel etc., where power is alleged to be judicial; OR
- Challenge to power of a Federal Court, or Ct exercising federal jurisdiction, where it is alleged to have
too much non-judicial power

However, the application also extends to:

- Powers of Masters and Registrars:
Harris v. Caladine
Parl had decided to make the Family Ct business more efficient by giving the Family Ct Registrar the
power to make many orders under the Family Law Act (uncontested orders regarding property etc.).
The Registrars had made about 10,000 or 11,000 orders under these provisions before it was challenged
in this case.
The Act, in giving the Registrar the power to make laws on uncontested orders, had also said that there
was a right of appeal, if somebody changed their mind, to the Family Ct and if this occurred, the Ct had
to hear the whole thing again from the beginning.
HELD:
A grant of power to the Registrar to make some judicial-type orders was held to be valid as long as
1.) they didnt give so much power to the Registrar that the Ct appeared to have its powers taken away
and
2.) as long as the orders were appellable to the Ct.

Davison
(not overruled) The Registrar who was making the uncontested bankruptcy orders was in fact a federal
officer who was created to work in cooperation with a State Ct and given powers by a Cth Act was held
not to be able to exercise judicial power.

HCF
- State rules provided that master exercised some of the power of the Ct.
- Held valid even when Ct exercising federal jurisdiction.

State Courts
When a State Ct is exercising federal jurisdiction, it cant be given non-judicial power (by Cth or State law)
except when auxiliary and incidental to judicial power: Queen Vic Hospital
Kable 3 out of 6 said that State Cts cant be given a function incompatible with judicial function at any
time, because Supreme Cts, at least, are part of the federal Ct system.

Parliament itself
Cant exercise judicial power by passing
- Bill of Attainder, Pains and Penalties (Polyukhovich)

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- Act providing for imprisonment without appeal (Lim)

However, Parl can enact laws re burden of proof, admissibility of evidence, even directing courts to ignore
complicity of police in illegality, as long as the court is left free to impartially find facts and apply the law
(Nicholas v. R [1998] per Brennan CJ.) Gaudron J. said that consistency with the essential character of a Ct
and with the nature of judicial power necessitates that a Ct not be required or authorised to proceed in a
manner that does not(list if anything of the list is breached then Parl will be breaching the separation of
powers).
What has to be maintained is equality before the law;
Impartiality and the appearance of impartiality;
The right of a party to meet the case made against him or her;
The independent determination of the matter and controversy by application of the law to facts
determined in accordance with rules and procedures which truly permit the facts to be
ascertained; and
In the case of criminal proceedings, the determination of guilt or innocence by means of a fair
trial.

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