The Court System
Aim of lecture:
Understand Chapter III of the
Commonwealth Constitution and:
(a) The separation of powers doctrine
(b) The meaning of ‘judicial power’
Understand the courts and separation
of powers at a state level and:
(a) Kable
(b) Kuczborski (distinguishes
Totani)
Lecture Overview: COURTS
FEDERAL
STATE
Separation of powers
Cth Constitution
Boilermakers etc
NSW Constitution
Kable etc
What is a court?
‘At the end of the day it has unfortunately
to be said that there emerges no sure
guide, no unmistakable hall mark by which
a ‘court’ may unerringly be identified. It is
largely a matter of impression.’
Attorney-General v British Broadcasting Corporation [1981] AC 303,
351 (per Lord Edmund)
Why is this important?
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1. Bodies which look like courts but are
not courts (ie: tribunals)
2. Bodies may be found to be
constitutionally invalid (eg: ‘new’
Australian Military Court declared invalid in
2009)
3. Processes may ‘look’ judicial but are
they? (eg: Manus Island in 2014)
The Court System
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What is it that ‘makes a court’ – judicial power
The way in which the exercise of judicial power
is separated from legislative and executive
power – or the Separation of Powers
The differences between Federal and State
judicial power
The attempts made to overcome differences
between the Federal and State judicial powers –
or the cross vesting scheme.
Jurisdiction and
Heirarchy of courts
(IMPORTANT!)
Judicial hierarchies
Commonwealth courts
Must be a Chapter III court: ‘judicial power’
The Cth Constitution

Creates a separation of powers:
Creates the Federal Parliament, Executive
and Judicature in distinct chapters and vests
them with separate powers in ss 1, 61 and
71 (see Boilermakers’ (1956) 94 CLR 254,
275 (Dixon CJ, McTiernan, Fullagar and Kitto
JJ)
Judicial power
s71 of the Commonwealth Constitution:
“The judicial power of the Commonwealth
shall be vested in a Federal Supreme
Court, to be called the High Court of
Australia, and in such other federal courts
as the Parliament creates, and in such
other courts as it invests with federal
jurisdiction. The High Court shall consist
of a Chief Justice, and so many other
Justices, not less than two, as the
Parliament prescribes.”
S71 Constitution:
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Vests the ‘judicial power’ of the Commonwealth in
the High Court and other Chapter III Courts.
Acknowledges that the Federal Parliament can
invest State courts with Federal jurisdiction –
(mentioned in s77(iii) of the Constitution) – and
provides foundation for cross vesting scheme.
Makes clear that the judicial power of the
Commonwealth can only be exercised by these s71
courts – or that the judicial power is clearly
separated from the legislative and executive
powers.
What is ‘judicial power’?

Answer in Chapter III of Commonwealth
Constitution
AND
Constitutional case law decided by High
Court (eg: Boilermaker’s Case)
Case law…

It is widely accepted that the judicial,
executive and legislative powers are not
entirely exclusive of each other, and that
judicial power is not conducive of an easily
articulated definition
(see: Precision Data Holdings Ltd v Wills
(1991) 173 CLR 167, 188-9 per Mason CJ,
Brennan, Dean, Dawson, Toohey, Gaudron
and McHugh JJ)
Huddart, Parker & Co Pty Ltd v
Moorehead (1909) 8 CLR 330, 357 per Griffiths CJ:
“I am of opinion that the words ‘judicial
power’ as used in sec 71 of the
Constitution mean the power which every
sovereign authority must of necessity have
to decide controversies between its
subjects, or between itself and its
subjects, whether the rights relate to life,
liberty or property. The exercise of this
power does not begin until some tribunal
which has power to give a binding and
authoritative decision (whether subject to
appeal or not) is called upon to take
action.”
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd 1970] HCA 8;
(1970) 123 CLR 361

[J]udicial power involves, as a general rule, a decision
settling for the future, as between defined persons or
classes of persons, a question as to the existence of a
right or obligation, so that an exercise of the power
creates a new charter by reference to which that
question is in future to be decided as between those
persons or classes of persons. In other words, the
process to be followed must generally be an inquiry
concerning the law as it is and the facts as they are,
followed by an application of the law as determined to
the facts as determined; and the end to be reached
must be an act which, so long as it stands, entitles and
obliges the persons between whom it intervenes, to
observance of the rights and obligations that the
application of law to facts has shown to exist.
Judicial power of the
Commonwealth

s73: a “judgement, decree, order or
sentence”
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e.g. Saffron v The Queen (1953) 88 CLR 523 or
ss75-77 a “matter”

e.g. In re Judiciary and Navigation Acts
29 CLR 257
(1921)
Alexander’s case
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Waterside Workers Federation v J W
Alexander Ltd (1918) 25 CLR 434
Difference between judicial and nonjudicial power
s72 Commonwealth Constitution: judges
appointed for life (now until retirement
age of 70)
Following quotes from the
judges show the difficulty
defining ‘judicial power’
Judges:
Griffith C.J., Barton, Isaacs,
Higgins, Gavan Duffy, Powers
and Rich JJ.
Griffith CJ
As soon as man emerged from the savage state and
formed settled communities, the necessity became
apparent of rules to regulate conduct. It also became
necessary to make provision for their enforcement, and
for the settlement of private controversies between
individuals. In each case the right to do so was assumed
by the community at large, and vested in some person
or authority representing that community. Hence arose
lawgivers and Judges. And as civilization advanced, and
persons came to discriminate between the diverse
functions of the community, these functions were called
"the judicial power" as distinguished from the legislative
and executive powers. (at 434)
Barton J
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“It is the power of a Court to decide
and pronounce a judgement and
carry it into effect between persons
and parties who bring a case before
it for decision….” (at 451)
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“From the earliest times, when people have associated
themselves into settled communities, their interest has
dictated to them the adoption of rules of conduct as the
alternative to anarchy and as the only means of
securing internal peace in the pursuit of their
avocations. The making of such rules, by whatever term
it may have been known, is the making of laws; that is,
it is legislation. But laws of themselves were of little
force without bodies which could enforce them- and
authorities with power to enforce them were created.
These authorities might or might not be called Judges,
the tribunals might not be called Courts, and the power
which they exercised might or might not be called
judicial power. Whether persons were Judges, whether
tribunals were Courts, and whether they exercised
what is now called judicial power, depended and
depends on substance and not on mere name.
Enforceable decision by an authority constituted by law
at the suit of a party submitting a case to it for decision
is in character a judicial function.” Barton J 451
Powers J
“a Court of judicature is a Court to settle existing
rights between parties, but a compulsory
arbitration Court is not a Court to settle existing
rights. Its powers are more legislative than
judicial. It is empowered to fix by an award,
which is to have the effect of law, what wages
are to be paid … The award is binding as a
declaration of the law on persons who have not
had any existing rights prior to the award, for it
compels employers to pay the minimum wage
fixed by the award …. The Arbitration Court is
only asked to make an award when employers or
employees are not content with existing rights
and would not be content with any declaration as
to existing rights.” (at 485)
Isaacs and Rich JJ
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“Both [the judicial and arbitral power]
presuppose a dispute, and a hearing or
investigation, and a decision. But the essential
difference is that the judicial power is
concerned with the ascertainment, declaration
and enforcement of the rights and liabilities of
the parties as they exist, or are deemed to
exist, at the moment the proceedings are
instituted; whereas the function of arbitral
power in relation to industrial disputes is to
ascertain and declare, but not enforce, what in
the opinion of the arbitrator ought to be the
respective rights and liabilities of the parties in
relation to each other”. (463-4)
R v Davison (1954) 90 CLR 353 at 369
“The truth is that the ascertainment of
existing rights by the judicial
determination of issues of fact or law falls
exclusively within judicial power so that
the Parliament cannot confide the
function to any person or body but a court
constituted under ss71 and 72 of the
Constitution.”
Separation of Powers
The reality?
The legislature (Cth)
The Judiciary (High Court)
Executive (Governor-General)
His Excellency the Honourable
Peter Cosgrove AK MC (Retd)
Sir Gerard Brennan:
“The Courts are an important element in the system of
checks and balances that preserves our societies from a
concentration of official power that might otherwise
oppress the people and restrict their freedom under the
law. The Courts are an organ of Government but they are
not part of the Executive Government of that country. …
But the apolitical organ of government, the Courts, are
there continually to extend the protection of the law
equally to all who are subject to their jurisdiction: to the
minority as well as the majority, the disadvantaged as
well as the powerful, to the sinners as well as the saints,
to the politically incorrect as well as those who embrace a
contemporary orthodoxy. The principle of judicial
independence is not proclaimed in order to benefit the
Judges; it is proclaimed in order to guarantee a fair and
impartial hearing and an unswerving obedience to the
rule of law. That is the way in which our peoples secure
their freedom under the law.”
The reality?
Boilermakers case
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R v Kirby; ex parte Boilermakers’ Society
of Australia (1956) 94 CLR 254
Biolermakers - 2 limbs…..
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Separation of judicial powers principles:
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Limb 1: Commonwealth judicial power can
only be exercised by courts referred to in
section 71 (Alexander’s case)
Limb 2: courts exercising Commonwealth
judicial power can only exercise judicial power
and non-judicial power that is incidental to
the exercise of judicial power (Boilermakers’
case)
High Court (267)
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“in a federal form of government a part is
necessarily assigned to the judicature which
places it in a position unknown in a unitary
system or under a flexible constitution where
Parliament is supreme…The conception of
independent governments existing in the one
area and exercising powers in different fields of
action carefully defined by law could not be
carried into practical effect unless the ultimate
responsibility of deciding upon the limits of
respective powers of the governments were
placed in the federal judicature.
Separation of judicial power
“Chapter III does not allow the exercise
of a jurisdiction which of its very nature
belongs to the judicial power of the
Commonwealth by a body established for
purposes foreign to the judicial power,
notwithstanding that it is organized as a
court and in a manner which might
otherwise satisfy ss71 and 72, and that
Chap III does not allow a combination
with judicial power of functions which are
not ancillary or incidental to its exercise
but are foreign to it” (296)
Wilson v Minister for Aboriginal and
Torres Strait Islander Affairs
(1996) 189 CLR 1
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“the separation of functions is
designed to provide checks and
balances on the exercise of
power by the respective organs
of government in which powers
are reposed.” per Brennan CJ, Dawson,
Toohey, McHugh and Gummow JJ at 11
Persona Designata rule
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Hilton v Wells (1985) 157CLR 57
“Although the Parliament cannot
confer non –judicial powers on a
federal court, or invest a State court
with a non-judicial power, there is no
necessary constitutional impediment
which prevents it from conferring
non-judicial power on a particular
individual who happens to be a
member of a court” (68 Per Gibbs CJ, Wilson
and Dawson JJ.)
Delegation of Federal Judicial
Power
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Harris v Caladine (1991) 172 CLR 84
Power can be delegated but:
 the delegation cannot be such that the
judges no longer manage the more
important aspects of contested
matters, and
 the exercise of the delegated power
must be subject to review by the
judges themselves.
The reality?
NSW separation of powers
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New South Wales Constitution does not
enshrine a separation of powers: Building
Construction Employees and Builders' Labourers' Federation of New South
Wales v Minister for Industrial Relations & Anor (1986) 7 NSWLR 372;
SEE:
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Kable v Director of Public Prosecutions
(NSW) (1996) 189 CLR 51
Totani…
Under s 10(1) of the SOCC Act, the
Attorney-General is, on the making of an
application by the Commissioner of Police,
empowered to “make a declaration” if
satisfied of two criteria:
“(a) members of the organisation associate
for the purpose of organising, planning,
facilitating, supporting or engaging in
serious criminal activity; and
(b) the organisation represents a risk to
public safety and order in this State”.
Section 14(1) provided that the Court
“must” make a control order “if the Court
is satisfied that the defendant is a member
of a declared organisation”.
a breach of either of these or any additional
conditions of a
 control order is an offence punishable by
five years imprisonment.
Justice French
….the extent of the intrusions upon personal
freedom effected by a control order is
relevant to the characterisation of the duty
imposed upon the Magistrates Court under s
14(1) of the Act and to whether, contrary to
assumptions reflected in Ch III of the
Constitution, s 14(1) removes or impairs
that independence from the executive that
is a defining characteristic of courts of law in
Australia.
Queensland laws: Hells Angels Motorcycle Club
member Stefan Kuczborski no standing, never
been charged
KUCZBORSKI v THE STATE OF QUEENSLAND
[2014] HCA 46
“The laws did not require the courts to
proceed otherwise than in accordance with
the processes which are understood to
characterise the exercise of judicial power,”
the summary judgement said. (handed
down 14 November 2014)
Totani Distinguished
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Confined operation of Totani: categorized
it as a case where the law held invalid was
not one of determining criminal guilt – but
rather required the court to create new
norms of conduct
Kuczborski more consistent with Kable
than Totani
Totani and future challenges
“Effectively the bikie challenge is dead.
“It may be that another person, with proper
standing, a proper claim and a proper
challenge may have some luck.”
Read more:
Tony Keim, Robyn Wuth & Mackenzie Ravn
From: Gold Coast Bulletin
November 14, 2014 9:50AM (citing the criminal lawyer in the case)
Cross Vesting Scheme
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s77(iii) Constitution
s39(2) Judiciary Act
“The several Courts of the States shall
within the limits of their several
jurisdictions, whether such limits are as to
locality, subject-matter or otherwise, be
invested with federal jurisdiction, in all
matters in which the High Court has
original jurisdiction or in which original
jurisdiction can be conferred on it.”
Issues with Cross Vesting
Re Wakim; ex parte McNally (1999) 163 ALR
270
Commonwealth or Ch III Courts
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High Court of Australia
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Federal Court of Australia
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Federal Court of Australia Act 1976 (Cth)
Family Court of Australia
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Constitution ss71-77
Judiciary Act 1903 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit Court of Australia
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Federal Magistrates Court Act 1999 (Cth)
NSW Courts
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Supreme Court of New South
Wales
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District Court of New South
Wales
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Supreme Court Act 1970 (NSW)
District Court Act 1973 (NSW)
Local Courts
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Local Courts (Civil Claims) Act 1970
(NSW)
Non-judicial tribunals
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Administrative Appeals Tribunal
Australian Competition and Consumer
Commission
Australian Competition Tribunal
Australian Industrial Relations Commission
Australian Securities Commission
Copyright Tribunal
Registrar of Trade Marks
The Commissioner of Taxation