1. The Court System

3. NSW Judicial Hierarchy

6. Federal Judicial Hierarchy

7. Judicial hierarchies

9. The Court System What is it that ‘makes a court’ – judicial power 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 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 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. The attempts made to overcome differences between the Federal and State judicial powers – or the cross vesting scheme. The differences between courts and tribunals The differences between courts and tribunals

12. Judicial power s71 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.”

13. S71 Constitution: Vests the judicial power of the Commonwealth in the High Court and other Chapter III Courts. 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. 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. 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.

14. Two questions: Power – Is the power that the court is to exercise consistent with the judicial power - dealt with by considering the nature of judicial power, and Power – Is the power that the court is to exercise consistent with the judicial power - dealt with by considering the nature of judicial power, and Jurisdiction – usually dealt with by considering the relevant legislation which created the court Jurisdiction – usually dealt with by considering the relevant legislation which created the court

15. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 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.”

17. “Judicial Power” Three elements Three elements a controversy between parties a controversy between parties which concerns rights – relating to either life, liberty or property which concerns rights – relating to either life, liberty or property in respect of which a binding or conclusive decision can be reached. in respect of which a binding or conclusive decision can be reached.

18. Judicial power of the Commonwealth s73: a “judgement, decree, order or sentence” s73: a “judgement, decree, order or sentence” e.g. Saffron v The Queen (1953) 88 CLR 523 or e.g. Saffron v The Queen (1953) 88 CLR 523 or ss75-77 a “matter” ss75-77 a “matter” e.g. In re Judiciary and Navigation Acts (1921) 29 CLR 257 e.g. In re Judiciary and Navigation Acts (1921) 29 CLR 257

19. Alexander’s case Waterside Workers Federation v J W Alexander Ltd (1918) 25 CLR 434 Waterside Workers Federation v J W Alexander Ltd (1918) 25 CLR 434 Difference between judicial and non judicial power Difference between judicial and non judicial power s72 Commonwealth Constitution: judges appointed for life (now until retirement age of 70) s72 Commonwealth Constitution: judges appointed for life (now until retirement age of 70)

21. Barton J at 451: judicial power “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….” “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….”

22. “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 “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

23. Powers J at 485 “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.”

24. Isaacs and Rich JJ at 463-4 “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”. “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”.

25. 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.”

26. Separation of Powers

28. The reality?

29. The legislature (Cth)

30. The Judiciary (High Court)

31. Executive (Governor-General)

32. 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.”

33. The reality?

34. Boilermakers case R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 Separation of powers Separation of powers “in a Federal system, the absolute independence of the judiciary is the bulwark of the Constitution against encroachments whether by the Legislature or by the Executive” Privy Council at 540 “in a Federal system, the absolute independence of the judiciary is the bulwark of the Constitution against encroachments whether by the Legislature or by the Executive” Privy Council at 540

35. High Court (at 267) “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. “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.

36. 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” (at 296)

37. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 “ 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 “ 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

38. Persona Designata rule Hilton v Wells (1985) 157CLR 57 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” (at 68 Per Gibbs CJ, Wilson and Dawson JJ.) “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” (at 68 Per Gibbs CJ, Wilson and Dawson JJ.)

39. Delegation of Federal Judicial Power Harris v Caladine (1991) 172 CLR 84 Harris v Caladine (1991) 172 CLR 84 Power can be delegated but: 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 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 exercise of the delegated power must be subject to review by the judges themselves.

40. The reality?

41. Cross Vesting Scheme s77(iii) Constitution s77(iii) Constitution s39(2) Judiciary Act 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.” “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.”

42. Issues with Cross Vesting Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Re Wakim; ex parte McNally (1999) 163 ALR 270 Re Wakim; ex parte McNally (1999) 163 ALR 270

43. Jurisdiction Statute Statute Court rules Court rules Practice Notes Practice Notes

44. Commonwealth or Ch III Courts High Court of Australia High Court of Australia Constitution ss71-77 Constitution ss71-77 Judiciary Act 1903 (Cth) Judiciary Act 1903 (Cth) Federal Court of Australia Federal Court of Australia Federal Court of Australia Act 1976 (Cth) Federal Court of Australia Act 1976 (Cth) Family Court of Australia Family Court of Australia Family Law Act 1975 (Cth) Family Law Act 1975 (Cth) Federal Magistrates Court of Australia Federal Magistrates Court of Australia Federal Magistrates Court Act 1999 (Cth) Federal Magistrates Court Act 1999 (Cth)

45. NSW Courts Supreme Court of New South Wales Supreme Court of New South Wales Supreme Court Act 1970 (NSW) Supreme Court Act 1970 (NSW) District Court of New South Wales District Court of New South Wales District Court Act 1973 (NSW) District Court Act 1973 (NSW) Local Courts Local Courts Local Courts (Civil Claims) Act 1970 (NSW) Local Courts (Civil Claims) Act 1970 (NSW)

46. Non-judicial tribunals Administrative Appeals Tribunal Administrative Appeals Tribunal Australian Competition and Consumer Commission Australian Competition and Consumer Commission Australian Competition Tribunal Australian Competition Tribunal Australian Industrial Relations Commission Australian Industrial Relations Commission Australian Securities Commission Australian Securities Commission Copyright Tribunal Copyright Tribunal Refugee Review Tribunal Refugee Review Tribunal Registrar of Trade Marks Registrar of Trade Marks The Commissioner of Taxation The Commissioner of Taxation