Essay
Independence of Australia
• Colonial Laws Validity Act (1865) UK (2)
• Federation in 1901 (2)
• Balfour Declaration (1926) (2)
• Statute of Westminster (1941) (3)
• Australia Act (1986) (3)
• Parliamentary Supremacy (3) – Union Steamship & Al-Kateb Methods of Characterisation and Interpretation and their effect Interpretation
• Literalism – Engineers (5 & 6)
• Legalism – Engineers (5)
• Both are forms of Originalism (6)
• Progressivism – Pay Roll Tax Case (6)
• High Court most often adopts a legalist/literalist approach (6)
• Jumbunna Principle – Have to be Broad and general and change with the times (7)
• Ambulatory approach – Moving and flexible – Grainpool (7)
• Limitation of Literalism – It is not likely that judges make a complete decision separate from their own experiences. Assumption that words have a natural meaning is debatable. (5)
• Spectrum (7)
• Opinions –
o Originalism – Can’t apply an over 100-year-old constitution to a country. Must be flexible.
o Literalism/Legalism – Not effect thinking, its only about the actual physical words, which in some circumstance could lead to unfair justice. Applying a natural meaning is ambiguous and can lead to inconsistent interpretations. (9)
o However, in the end, flexibility is more appropriate than a stringent, outdated interpretation.
Characterisation
• Dual Characterisation (9) – Effect that the commonwealth can legislate on areas outside their power because as long as it touches on a head of power it doesn’t matter what other powers its operating on – Murphyores. Can quote the reason for the decision on page 7 of the case summary (Mason, J speaking)
• Opinion - Substantially extends the Commonwealths legislative abilities, which can lead to a imbalance of powers, however, its necessary to enable the Commonwealth to function, as it would be extremely difficult to legislate on one area and one area alone.
Hypothetical
HEADS OF POWER
• Corporations Power – Section 51(xx) – Does it involve a Corporation?
o Has the Corporation been formed? And has it operated in Australia (23)
§ Must be a formed corporation, does not extend to incorporation (Incorporation Case)
§ A corporation must carry on some form of business in Australia, and can be formed outside the limits of the Commonwealth (Incorporation case)
o Is it a Trading and Financial Corporation (24-25)
§ Activities v Purposes test
§ Non-Committal about what test is to be used. Combination of both (Queensland Rail case)
§ Reintroduction of the purpose having some importance
§ Focus on the substance of the corporation’s activities or purpose. Is its key activities or purpose for trading?
o Is parliament legislating on the ‘trading and finance’ of the Corporation? (28)
§ Object of Command test (Reformulated in Work Choices). As long as it’s a relevant corporation, then any activities of that corporation can be regulated
§ It extends to
• The regulation of the activities, functions, relationships and the business of a s 51(xx) corporation;
• The creation of rights and privileges of those corporations;
• The imposition of obligations on those corporations;
o ‘[L]aws prescribing the industrial rights and obligations of [constitutional] corporations and their employees and the means by which they are to conduct their industrial relations’ are laws with respect to constitutional corporations.’
• The regulation of those through whom these corporations act, their employees and shareholders; and
• The regulation of those whose conduct is or is capable of affecting the activities, functions, relationships and businesses of those corporations
Summary Notes
Judicial Power Exceptions, Detention and the States
Exceptions to the two Separation of Judicial Power (SoJP) Principles
● Judicial Delegation is an exception to the principle that only Chapter III courts can exercise Chapter III power. It’s possible for federal courts to delegate some aspects of the role of the judge to people employed within the court system who are not judges.
○ Harris v Caladine (1991)
■ Under the Family Law Act 1975 (Cth), Family Court registrars (who are not judges) were empowered to make consent orders regarding property settlements.
These orders were subject to de novo review by the Court. The power to make consent orders was a judicial power – could it be vested in non-judicial officers?
■ HC: Yes, but with two conditions (Mason and Deane JJ):
1. the delegation must not be to an extent that judges no longer ‘continue to bear the major responsibility for the exercise of judicial power’; and 2. the delegation must not be ‘inconsistent with the obligations of a court to
act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court’
● The principle of persona designata – judges acting in their personal capacity – is an exception to the requirement that Chapter III courts can only exercise Chapter III power.
○ This allows the executive/legislature to make use of the skills and experience of Ch III judges while not compromising (or minimally compromising) the separation of judicial power.
○ Three limitations on persona designata roles:
1. Commonwealth legislation must clearly (expressly or impliedly) provide that the function is to be performed or power is to be exercised by judge in his/her personal capacity;
2. The judge must consent to the performance of that function or exercise of power;
3. The function or power must not be incompatible with the exercise of the judicial function or with the discharge of judicial power.
○ Hilton v Wells (1985)
Case Notes
Harris v Caladine (1991) 172 CLR 84
● Facts: The provisions of the Family Law Act effectively allowed a de novo review of the registrar’s decision. The delegated function involved the making of consent orders for the settlement of property. That order determined the rights of the parties.
● Issue: Should only federal judges, whose appointment and remuneration satisfy the requirements in s 72, exercise federal jurisdiction. Whether parliament could empower the Family Court to delegate the exercise of Commonwealth judicial power to Family Court registrars.
● Decision: Held that federal jurisdiction could be exercised by non-judicial officers of federal courts, provided that it is an exercise of delegated power that is subject to review by a judge.
● Reason for Decision:
○ Dawson: Considered that, provided a federal court retains ‘effective supervision and control over the exercise of its functions by its officers’, it was possible for non-judicial court officials to exercise delegated authority. If that supervision and control is lacking, then the court impermissibly would be exercising ‘independent authority’.
○ Gaudron: Considered that, to be permissible, delegation had to be consistent with the Commonwealth judicial power, including observance of judicial process requirements and supervision by the court.
○ McHugh: Although agreeing that non-judicial officers of federal courts could exercise judicial power, he disapproved of the analogy to the state court case. He proceeded to explain that there is a real difference between state courts exercising federal jurisdiction and federal courts. ‘Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government and of the [Cth] and the [Plmt of the Cth] so that litigants in federal courts could have their cases declared by judges who were free from potential domination by the legislative and executive branches of government’
● Ratio Decidendi: Judicial Delegation is an exception to the principle that only Ch III courts can exercise Ch III power.
Hilton v Wells (1985) 157 CLR 57
Facts: Section 20 of the Telecommunications (Interception) Act 1979 (Cth) conferred on ‘a Judge of the Federal Court’ the power to issue a telecommunications interception warrant. The provision was challenged on the basis that it conferred non-judicial power on the federal Court in breach of separation
