1. fundamentals of australian constitutional law page 2 2. th
TABLE OF CONTENTS: 1. FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW
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2. THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (A)
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3. THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (B)
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4. HIGH COURT AND CHARACTERISATION
PAGE 18 PAGE 26
5. INCONSISTENCY OF LAWS 6. THE EXTERNAL AFFAIRS POWER 51(xxix) 7. TRADE AND COMMERCE POWER s51 (i) and CORPORATIONS POWER s51 (xx) 8. THE RACES POWER s51 (xxvi) 9. THE DEFENCE POWER s51 (vi) 10. THE TAXATION POWER S51 (ii) 11. THE GRANTS POWER S96 12. EXPRESS GUARANTEES – TRIAL BY JURY 13. EXPRESS GUARANTEES – FREEDOM OF RELIGION 14. FREEDOM OF INTERSTATE TRADE AND COMMERCE
15. IMPLIED FREEDOM OF POLITICAL COMMUNICATION 16. JUDICIAL POWER AND DETENTION 17. THE FEDERAL COMPACT: MELBOURNE CORPORATION PRINCICPLE
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PAGE 35 PAGE 44 PAGE 54 PAGE 59 PAGE 68 PAGE 73 PAGE 79 PAGE 82 PAGE 86 PAGE 92 PAGE 102 PAGE 111
JUDICIAL POWER & DETENTION 1.Introduction: • This topic deals with various questions related to the nature of Ch.III judicial power and the right of citizens and non citizens in Australia not to have their liberty restricted without a good reason as to be decided by a court of law 2.General principles: A.What does Separation of Powers means? • ChIII courts (courts created by ChIII of the Constitution) may only exercise judicial power – not legislative/executive. • Supposedly comes from the separation of the Constitution into 3 chapters. B.What’s different between Cth and States? • The Separation of Power applies at the Cth level • The Separation of Powers does not apply at the State level C.What are the ‘Two limbs’ of the Boilermakers case regarding the Separation of powers? 1. Federal judicial power can only be vested in Ch III Courts à Those courts referred to in s71 of the Constitution a. S71 established three categories/types of bodies: i. The High Court of Australia ii. Those federal courts created by the Cth Parliament iii. Existing courts such as the State Supreme courts in which the Cth decides to invest federal judicial power. 2. Ch III courts can ONLY exercise judicial power. They are not permitted to exercise non judicial power. a. Eg A Court cannot decide how much budget to allocate to child welfare (as this is EXECUTIVE POWER!) 3. What is judicial power? a. The best definition of Judicial power for our purposes: judges deciding disputes between opposing parties as to questions of law and fact. b. Adjudgment and punishment of guilt (Chu Kheng Lim) c. Detention that is penal or punitive in nature D.Exceptions: Exceptions to #2 principle: 1. Persona designata à The Commonwealth parliament may give a non-‐judicial function to a judge acting in his or her personal/individual capacity (Hilton v Wells). o Recognises that a person can wear two hats (a judge hat and a personal hat). If you’re wearing your personal hat, you can exercise powers you couldn’t exercise if you were wearing your judicial hat. o Exception to persona designate rule: Non judicial functions cannot be vested in an individual when those functions are incompatible with their function as a judge (Grollo v Palmer and Wilson) 2. A court can be vested with non-‐judicial power when it needs to have it to function as a court: o Eg . A Court Registry. Court is exercising administrative/executive functions. But it’s reasonably necessary to keep the Court functioning. 3. Exam steps: Question as to vesting a Ch III court with exec/leg Question as to vesting executive with judicial power power What is judicial power: Approach # 1 (from Lim which the majority in Kruger sticks with) • Deciding disputes between opposing 1. First distinguish between citizens and aliens (different sorts of parties as to questions of law/fact immunities!) • Adjudging and punishing of criminal guilt (Chu Kheng Lim) 2. Recognise there’s a general Ch III immunity – ie executive • Detention that is punitive/penal in nature cannot exercise judicial power (Chu Kheng Lim) (Chu Kheng Lim) 3. Is the power exercised judicial? a. State definition of judicial power i. Adjudging and punishing of criminal guilt ii. Deciding disputes between opposing parties iii. Detention that is punitive in nature (Chu Kheng Lim) b. Look at substance of power c. Look at purpose of power (Kruger) 4. Recognise some exceptions (madness, quarantine etc.) 5. Proportionality (reasonably be capable of being seen as
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reasonably necessary for the legitimate, non punitive purpose) Federal courts: • According to the separation of powers doctrine, federal courts can only be invested with judicial power (Chu Kheng Lim) • An exception to this is persona designate o Exception – incompatibility doctrine
State courts: • Pursuant to Kable, the incompatibility doctrine was extended to state courts exercising federal judicial power • State courts can exercise non judicial functions because the SOP does not exist at state level • Test: BUT à State Courts cannot be vested with functions that are incompatible with or repugnant to their role as potential repositories for federal judicial power. • What do we mean by repugnant to/incompatible with? o 1.The idea of undermining public confidence in the judiciary by making them look like ‘instruments’ of the executive (ie not impartial). o 2.Incompatibility means to undermine the institutional integrity of the courts. What is incompatible • Legislation aimed at 1 person – prejudgment (Baker) • Adjudging as to future, not past acts • Not resolving disputes • No normal rules of evidence • Court having no discretion • Court being seen as instrument of executive policy (Kable)
Approach # 2 (The Gaudron Approach – adopted by the majority in Al-‐ Kateb) 1. Don’t start with the ChIII immunity – this doesn’t exist! 2. Instead, look to the powers available in s51 – see if there is one available which might support the detention a. eg s51xix for Aliens – this CLEARLY allows for detention including for ongoing segregation b. Eg S51(x) (Quarantine power) is another c. As noted in Re Woolley, the detention will only be available if it can be considered as incidental to head of power 3. If no head of power is available the legislature does not have the power to make a law for detention (Kruger) 4. Proportionality has NO role (it only had a role in relation to understanding the Ch III immunity. Here we’re only engaged in characterisation) 5. The ONLY question is whether the detention is punitive or legitimate (eg segregation is legitimate detention) a. If it is punitive it will not fall within the head of power because it will not be reasonably necessary for a legitimate purpose (R v Woolley) b. Furthermore because the constitution does not grant power to legislate for detention free from breach of the law (Kruger) Exceptions: NOTE – apply this to both tests: Test 1 – no protection from immunity in following cases Test 2 – following cases reasonably necessary for HOP When detention will not be considered punitive: • Detention in custody without bail pending the determination of a criminal charge • Detention because of infectious disease or mental illness. • Contempt of parliament • Detention by military tribunals • Immigration detention (Woolley)
How to establish whether punitive: • Whether detention is penal or punitive must depend on all the circumstances of the case • Must ask what is the object or purpose of the detention? o The terms of the law, the surrounding circumstances, the mischief at which the law is aimed and the parliamentary debates preceding its enactment will indicate the purpose of the law • Need to consider all the circumstances of the case (Woolley)
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Fettering court’s discretion to choose whether person guilty or not (Baker)
What is compatible: • Difficult tests – but where discretion of court maintained (Baker) • Legislation not aimed at 1 specific person but a class of persons (Baker) • Legitimate public aim (Fardon) • Open and public proceedings (Fardon) • Preventative detention but with normal judicial safeguards (Fardon/Baker) • Non arbitrary criteria for establishing preventative detention orders (Baker) Exam question: 1. Note the rule established in Chu Kheng Lim – federal courts can ONLY exercise federal judicial power – basis for this is SOP 2. What is federal judicial power? 3. Exception – personal designate and incompatibility doctrine 4. Extension of principle to state courts a. Although they can exercise power that is non judicial due to the fact that SOP does not exist at state level, the incompatibility doctrine exists b. Is the power being exercised incompatible or repugnant?
• NOTE: • Indefinite detention does not make it punitive (Al-‐Kateb) • Harsh conditions does not make it punitive (Behrooz) Case examples: 1.Not punitive to remove aboriginal children from family because protective/welfare nature (Kruger) 2.indefintie immigration detention not punitive (Al-‐Kateb) 3. Harsh conditions in immigration detention not punitive (Behrooz)
Exam question: Test 1 1. Note the rule established in Chu Kheng Lim – ONLY federal courts can exercise federal judicial power – basis for this is SOP 2. What is federal judicial power? a. Go into detail about what is punitive 3. Is the power being exercised judicial? a. Is it punitive? 4. Does it fall within an established exception? 5. If no, is it for a legitimate purpose and is it reasonably appropriate and adapted for the legitimate purpose? (Kruger) Test 2 1. Supported by a head of power? 2. Is the power punitive? – if yes it will not be supported by a head of power
4.Introductory case: i.Chu Kheng Lim v Minister for immigration, local govt and ethnic affairs (1992) Rule and exceptions. • Facts: The Migration Act was amended to provide for the detention of persons arriving illegally in Australia by boat. This detention was without a court order. The provisions were challenged on the basis that the detention of aliens in this manner was contrary to CH III because it was contrary to the separation of powers. The argument was that involuntary detention could only be authorised by Commonwealth judicial power under CH III of the Constitution by a court order, rather that the executive. This case relates to the provision made by CH III for the judicial power of the Commonwealth and is therefore only applicable to cases of detention under a law of the Commonwealth, not States or Territories. • Court: • Power to detain is judicial power – can only be exercised by courts: • Ch.III courts designated with function of adjudgment and punishment of criminal guilt • The involuntary detention of a citizen in custody by the state is penal or punitive in character and under our system of govt, exists only as an incident of the exclusively judicial function of adjudging and punishing guilt • Therefore beyond the legislative power of the parliament to invest the executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilty • Exceptions: • Exceptions exist in relation to proposition that order to detain can only be made by Ch III court: o 1.The arrest and detention in custody of a person accused of a crime to ensure their availability before court, ordered by an executive warrant – not seen as punitive o 2.In case of mental illness or infectious disease • Power to detain aliens: • 3.Furthermore, held that detention of an alien for the purposes of expulsion or deportation was not for a punitive purpose • This detention was incidental to the executive’s power to remit or disallow entry into Australia by aliens or to expel aliens • Held: Detention under provisions was not an exercise of judicial power and the sections were valid • Rule: The legislative power conferred by s51(xix) of the constitution (to make laws with respect to aliens) encompasses the conferral upon the executive of authority to detain an alien in custody for the purposes of expulsion/deportation – this is because such laws are neither punitive in nature nor part of judicial power
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5.The incompatibility doctrine A.Outline of doctrine: • Rule: Judicial power cannot be combined with non judicial power (Boilermaker’s Case) • Exception: Federal judge can be appointed to perform non judicial functions provided that those functions can be construed as assigned to the individual as Persona Designata and not in judicial capacity (Hilton v Wells (1985)) • Exception to exception: The persona designate doctrine does not apply if the functions to be performed are ‘incompatible’ with the holding of judicial office (Grollo v Palmer (1995)) • Extension of incompatibility doctrine: Kable greatly extended this doctrine to cases where no suggestion of personae designatae involved – treated as a wider limit on any exercise of judicial power i.Kable v DPP (NSW) (1996) Extension of incompatibility to state courts • Facts: The Community Protection Act 1994 (NSW) empowered the SCNSW to make ‘preventive detention orders’ • Under s15 an order could only be made against a person if the court was satisfied that the case against that person had been made out ‘on the balance of probabilities’ • The act was passed because Kable was in gaol for manslaughter and had written threatening letter • The effect of s3 was to confine its operation solely to Kable as a named individual • Effect: NSWSC was given the power to prolong Kable’s detention if it was satisfied on reasonable grounds that it was more likely that not that he would commit a serious act of violence and that detention as appropriate. • NOTE – SC was exercising federal jurisdiction under s39 of Judiciary Act– therefore exercising fed judicial power • Held: Majority invoked the incompatibility doctrine, holding that the function conferred on SC was ‘incompatible’ with its exercise of federal judicial power • Court: • 1. Why did court find that compatibility doctrine applied to this state legislation? • Because the SCA sometimes exercises federal judicial power – doctrine applicable at all times • 2.Why is the doctrine applicable to state courts all the time? • A.Integrated court system: • Because we have an ‘integrated court system’: • The HCA is a court of appeal in relation to state and federal matters • All of the State Supreme courts are exercising Australia’s unified common law. • Ch III supports this assertion –ss71 and 77: C explicitly says you can invest federal judicial power in State courts. • Once this is accepted it is obvious that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts, which are repugnant to or incompatible with their exercise of judicial power of the Cth. • B. Double capacity of state courts: • State SC has 2 capacities – state SC capacity, and federal judicial capacity • The public cant tell the difference between the two capacities • The level of independence and impartiality that the public sees the judge exercise when deciding state matters reflects upon the Federal Judicial system. • Therefore, although Ch III doesn’t prevent a state conferring non-‐judicial functions on state SCs in respect of non federal measures, those functions cannot be of a nature that might lead a person to believe court was not independent of state government • • • • •
• • • • •
3.What is the incompatibility doctrine? Federal Courts (HCA, Federal Court, Family Court) can ONLY be vested with federal judicial power This principle does not apply at the state level – state courts CAN be vested with non-‐judicial power. BUT à State Courts cannot be vested with functions that are incompatible with or repugnant to their role as potential repositories for federal judicial power. What do we mean by repugnant to/incompatible with? o The idea of undermining public confidence in the judiciary by making them look like ‘instruments’ of the executive (ie not impartial). o Incompatibility means to undermine the institutional integrity of the courts. 4.Why did the High Court say that the particular functions invested in the Supreme Court by the Act were incompatible with the exercise of federal judicial power? How did it undermine public confidence? In the legislation in question, Courts AREN’T deciding on punishment for past acts, they’re detaining people for things they MIGHT do in the future – involves making a guess Do not resolve disputes between contesting parties Normal rules of evidence don’t apply (permitted to introduce evidence you normally couldn’t rely upon!) Court was required to use the balance of probabilities to punish people NOT the usual criminal standard.
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2. THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (A)
PAGE 6
3. THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION (B)
PAGE 12
4. HIGH COURT AND CHARACTERISATION
PAGE 18 PAGE 26
5. INCONSISTENCY OF LAWS 6. THE EXTERNAL AFFAIRS POWER 51(xxix) 7. TRADE AND COMMERCE POWER s51 (i) and CORPORATIONS POWER s51 (xx) 8. THE RACES POWER s51 (xxvi) 9. THE DEFENCE POWER s51 (vi) 10. THE TAXATION POWER S51 (ii) 11. THE GRANTS POWER S96 12. EXPRESS GUARANTEES – TRIAL BY JURY 13. EXPRESS GUARANTEES – FREEDOM OF RELIGION 14. FREEDOM OF INTERSTATE TRADE AND COMMERCE
15. IMPLIED FREEDOM OF POLITICAL COMMUNICATION 16. JUDICIAL POWER AND DETENTION 17. THE FEDERAL COMPACT: MELBOURNE CORPORATION PRINCICPLE
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PAGE 35 PAGE 44 PAGE 54 PAGE 59 PAGE 68 PAGE 73 PAGE 79 PAGE 82 PAGE 86 PAGE 92 PAGE 102 PAGE 111
JUDICIAL POWER & DETENTION 1.Introduction: • This topic deals with various questions related to the nature of Ch.III judicial power and the right of citizens and non citizens in Australia not to have their liberty restricted without a good reason as to be decided by a court of law 2.General principles: A.What does Separation of Powers means? • ChIII courts (courts created by ChIII of the Constitution) may only exercise judicial power – not legislative/executive. • Supposedly comes from the separation of the Constitution into 3 chapters. B.What’s different between Cth and States? • The Separation of Power applies at the Cth level • The Separation of Powers does not apply at the State level C.What are the ‘Two limbs’ of the Boilermakers case regarding the Separation of powers? 1. Federal judicial power can only be vested in Ch III Courts à Those courts referred to in s71 of the Constitution a. S71 established three categories/types of bodies: i. The High Court of Australia ii. Those federal courts created by the Cth Parliament iii. Existing courts such as the State Supreme courts in which the Cth decides to invest federal judicial power. 2. Ch III courts can ONLY exercise judicial power. They are not permitted to exercise non judicial power. a. Eg A Court cannot decide how much budget to allocate to child welfare (as this is EXECUTIVE POWER!) 3. What is judicial power? a. The best definition of Judicial power for our purposes: judges deciding disputes between opposing parties as to questions of law and fact. b. Adjudgment and punishment of guilt (Chu Kheng Lim) c. Detention that is penal or punitive in nature D.Exceptions: Exceptions to #2 principle: 1. Persona designata à The Commonwealth parliament may give a non-‐judicial function to a judge acting in his or her personal/individual capacity (Hilton v Wells). o Recognises that a person can wear two hats (a judge hat and a personal hat). If you’re wearing your personal hat, you can exercise powers you couldn’t exercise if you were wearing your judicial hat. o Exception to persona designate rule: Non judicial functions cannot be vested in an individual when those functions are incompatible with their function as a judge (Grollo v Palmer and Wilson) 2. A court can be vested with non-‐judicial power when it needs to have it to function as a court: o Eg . A Court Registry. Court is exercising administrative/executive functions. But it’s reasonably necessary to keep the Court functioning. 3. Exam steps: Question as to vesting a Ch III court with exec/leg Question as to vesting executive with judicial power power What is judicial power: Approach # 1 (from Lim which the majority in Kruger sticks with) • Deciding disputes between opposing 1. First distinguish between citizens and aliens (different sorts of parties as to questions of law/fact immunities!) • Adjudging and punishing of criminal guilt (Chu Kheng Lim) 2. Recognise there’s a general Ch III immunity – ie executive • Detention that is punitive/penal in nature cannot exercise judicial power (Chu Kheng Lim) (Chu Kheng Lim) 3. Is the power exercised judicial? a. State definition of judicial power i. Adjudging and punishing of criminal guilt ii. Deciding disputes between opposing parties iii. Detention that is punitive in nature (Chu Kheng Lim) b. Look at substance of power c. Look at purpose of power (Kruger) 4. Recognise some exceptions (madness, quarantine etc.) 5. Proportionality (reasonably be capable of being seen as
102
reasonably necessary for the legitimate, non punitive purpose) Federal courts: • According to the separation of powers doctrine, federal courts can only be invested with judicial power (Chu Kheng Lim) • An exception to this is persona designate o Exception – incompatibility doctrine
State courts: • Pursuant to Kable, the incompatibility doctrine was extended to state courts exercising federal judicial power • State courts can exercise non judicial functions because the SOP does not exist at state level • Test: BUT à State Courts cannot be vested with functions that are incompatible with or repugnant to their role as potential repositories for federal judicial power. • What do we mean by repugnant to/incompatible with? o 1.The idea of undermining public confidence in the judiciary by making them look like ‘instruments’ of the executive (ie not impartial). o 2.Incompatibility means to undermine the institutional integrity of the courts. What is incompatible • Legislation aimed at 1 person – prejudgment (Baker) • Adjudging as to future, not past acts • Not resolving disputes • No normal rules of evidence • Court having no discretion • Court being seen as instrument of executive policy (Kable)
Approach # 2 (The Gaudron Approach – adopted by the majority in Al-‐ Kateb) 1. Don’t start with the ChIII immunity – this doesn’t exist! 2. Instead, look to the powers available in s51 – see if there is one available which might support the detention a. eg s51xix for Aliens – this CLEARLY allows for detention including for ongoing segregation b. Eg S51(x) (Quarantine power) is another c. As noted in Re Woolley, the detention will only be available if it can be considered as incidental to head of power 3. If no head of power is available the legislature does not have the power to make a law for detention (Kruger) 4. Proportionality has NO role (it only had a role in relation to understanding the Ch III immunity. Here we’re only engaged in characterisation) 5. The ONLY question is whether the detention is punitive or legitimate (eg segregation is legitimate detention) a. If it is punitive it will not fall within the head of power because it will not be reasonably necessary for a legitimate purpose (R v Woolley) b. Furthermore because the constitution does not grant power to legislate for detention free from breach of the law (Kruger) Exceptions: NOTE – apply this to both tests: Test 1 – no protection from immunity in following cases Test 2 – following cases reasonably necessary for HOP When detention will not be considered punitive: • Detention in custody without bail pending the determination of a criminal charge • Detention because of infectious disease or mental illness. • Contempt of parliament • Detention by military tribunals • Immigration detention (Woolley)
How to establish whether punitive: • Whether detention is penal or punitive must depend on all the circumstances of the case • Must ask what is the object or purpose of the detention? o The terms of the law, the surrounding circumstances, the mischief at which the law is aimed and the parliamentary debates preceding its enactment will indicate the purpose of the law • Need to consider all the circumstances of the case (Woolley)
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•
Fettering court’s discretion to choose whether person guilty or not (Baker)
What is compatible: • Difficult tests – but where discretion of court maintained (Baker) • Legislation not aimed at 1 specific person but a class of persons (Baker) • Legitimate public aim (Fardon) • Open and public proceedings (Fardon) • Preventative detention but with normal judicial safeguards (Fardon/Baker) • Non arbitrary criteria for establishing preventative detention orders (Baker) Exam question: 1. Note the rule established in Chu Kheng Lim – federal courts can ONLY exercise federal judicial power – basis for this is SOP 2. What is federal judicial power? 3. Exception – personal designate and incompatibility doctrine 4. Extension of principle to state courts a. Although they can exercise power that is non judicial due to the fact that SOP does not exist at state level, the incompatibility doctrine exists b. Is the power being exercised incompatible or repugnant?
• NOTE: • Indefinite detention does not make it punitive (Al-‐Kateb) • Harsh conditions does not make it punitive (Behrooz) Case examples: 1.Not punitive to remove aboriginal children from family because protective/welfare nature (Kruger) 2.indefintie immigration detention not punitive (Al-‐Kateb) 3. Harsh conditions in immigration detention not punitive (Behrooz)
Exam question: Test 1 1. Note the rule established in Chu Kheng Lim – ONLY federal courts can exercise federal judicial power – basis for this is SOP 2. What is federal judicial power? a. Go into detail about what is punitive 3. Is the power being exercised judicial? a. Is it punitive? 4. Does it fall within an established exception? 5. If no, is it for a legitimate purpose and is it reasonably appropriate and adapted for the legitimate purpose? (Kruger) Test 2 1. Supported by a head of power? 2. Is the power punitive? – if yes it will not be supported by a head of power
4.Introductory case: i.Chu Kheng Lim v Minister for immigration, local govt and ethnic affairs (1992) Rule and exceptions. • Facts: The Migration Act was amended to provide for the detention of persons arriving illegally in Australia by boat. This detention was without a court order. The provisions were challenged on the basis that the detention of aliens in this manner was contrary to CH III because it was contrary to the separation of powers. The argument was that involuntary detention could only be authorised by Commonwealth judicial power under CH III of the Constitution by a court order, rather that the executive. This case relates to the provision made by CH III for the judicial power of the Commonwealth and is therefore only applicable to cases of detention under a law of the Commonwealth, not States or Territories. • Court: • Power to detain is judicial power – can only be exercised by courts: • Ch.III courts designated with function of adjudgment and punishment of criminal guilt • The involuntary detention of a citizen in custody by the state is penal or punitive in character and under our system of govt, exists only as an incident of the exclusively judicial function of adjudging and punishing guilt • Therefore beyond the legislative power of the parliament to invest the executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilty • Exceptions: • Exceptions exist in relation to proposition that order to detain can only be made by Ch III court: o 1.The arrest and detention in custody of a person accused of a crime to ensure their availability before court, ordered by an executive warrant – not seen as punitive o 2.In case of mental illness or infectious disease • Power to detain aliens: • 3.Furthermore, held that detention of an alien for the purposes of expulsion or deportation was not for a punitive purpose • This detention was incidental to the executive’s power to remit or disallow entry into Australia by aliens or to expel aliens • Held: Detention under provisions was not an exercise of judicial power and the sections were valid • Rule: The legislative power conferred by s51(xix) of the constitution (to make laws with respect to aliens) encompasses the conferral upon the executive of authority to detain an alien in custody for the purposes of expulsion/deportation – this is because such laws are neither punitive in nature nor part of judicial power
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5.The incompatibility doctrine A.Outline of doctrine: • Rule: Judicial power cannot be combined with non judicial power (Boilermaker’s Case) • Exception: Federal judge can be appointed to perform non judicial functions provided that those functions can be construed as assigned to the individual as Persona Designata and not in judicial capacity (Hilton v Wells (1985)) • Exception to exception: The persona designate doctrine does not apply if the functions to be performed are ‘incompatible’ with the holding of judicial office (Grollo v Palmer (1995)) • Extension of incompatibility doctrine: Kable greatly extended this doctrine to cases where no suggestion of personae designatae involved – treated as a wider limit on any exercise of judicial power i.Kable v DPP (NSW) (1996) Extension of incompatibility to state courts • Facts: The Community Protection Act 1994 (NSW) empowered the SCNSW to make ‘preventive detention orders’ • Under s15 an order could only be made against a person if the court was satisfied that the case against that person had been made out ‘on the balance of probabilities’ • The act was passed because Kable was in gaol for manslaughter and had written threatening letter • The effect of s3 was to confine its operation solely to Kable as a named individual • Effect: NSWSC was given the power to prolong Kable’s detention if it was satisfied on reasonable grounds that it was more likely that not that he would commit a serious act of violence and that detention as appropriate. • NOTE – SC was exercising federal jurisdiction under s39 of Judiciary Act– therefore exercising fed judicial power • Held: Majority invoked the incompatibility doctrine, holding that the function conferred on SC was ‘incompatible’ with its exercise of federal judicial power • Court: • 1. Why did court find that compatibility doctrine applied to this state legislation? • Because the SCA sometimes exercises federal judicial power – doctrine applicable at all times • 2.Why is the doctrine applicable to state courts all the time? • A.Integrated court system: • Because we have an ‘integrated court system’: • The HCA is a court of appeal in relation to state and federal matters • All of the State Supreme courts are exercising Australia’s unified common law. • Ch III supports this assertion –ss71 and 77: C explicitly says you can invest federal judicial power in State courts. • Once this is accepted it is obvious that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts, which are repugnant to or incompatible with their exercise of judicial power of the Cth. • B. Double capacity of state courts: • State SC has 2 capacities – state SC capacity, and federal judicial capacity • The public cant tell the difference between the two capacities • The level of independence and impartiality that the public sees the judge exercise when deciding state matters reflects upon the Federal Judicial system. • Therefore, although Ch III doesn’t prevent a state conferring non-‐judicial functions on state SCs in respect of non federal measures, those functions cannot be of a nature that might lead a person to believe court was not independent of state government • • • • •
• • • • •
3.What is the incompatibility doctrine? Federal Courts (HCA, Federal Court, Family Court) can ONLY be vested with federal judicial power This principle does not apply at the state level – state courts CAN be vested with non-‐judicial power. BUT à State Courts cannot be vested with functions that are incompatible with or repugnant to their role as potential repositories for federal judicial power. What do we mean by repugnant to/incompatible with? o The idea of undermining public confidence in the judiciary by making them look like ‘instruments’ of the executive (ie not impartial). o Incompatibility means to undermine the institutional integrity of the courts. 4.Why did the High Court say that the particular functions invested in the Supreme Court by the Act were incompatible with the exercise of federal judicial power? How did it undermine public confidence? In the legislation in question, Courts AREN’T deciding on punishment for past acts, they’re detaining people for things they MIGHT do in the future – involves making a guess Do not resolve disputes between contesting parties Normal rules of evidence don’t apply (permitted to introduce evidence you normally couldn’t rely upon!) Court was required to use the balance of probabilities to punish people NOT the usual criminal standard.
105
