The Court SystemThe Court System

Topic 10Topic 10

NSW Judicial Hierarchy

Federal Judicial Hierarchy

Judicial hierarchiesJudicial hierarchies

The Court SystemThe 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 The way in which the exercise of judicial power

is separated from legislative and executive is separated from legislative and executive power – or the Separation of Powerspower – or the Separation of Powers

The differences between Federal and State The differences between Federal and State judicial powerjudicial power

The attempts made to overcome differences The attempts made to overcome differences between the Federal and State judicial powers between the Federal and State judicial powers – or the cross vesting scheme. – or the cross vesting scheme.

The differences between courts and tribunalsThe differences between courts and tribunals

Judicial powerJudicial power

s71 Constitutions71 Constitution::““The judicial power of the The judicial power of the Commonwealth shall be vested in a Commonwealth shall be vested in a Federal Supreme Court, to be called Federal Supreme Court, to be called the High Court of Australia, and in the High Court of Australia, and in such other federal courts as the such other federal courts as the Parliament creates, and in such other Parliament creates, and in such other courts as it invests with federal courts as it invests with federal jurisdiction. The High Court shall jurisdiction. The High Court shall consist of a Chief Justice, and so consist of a Chief Justice, and so many other Justices, not less than many other Justices, not less than two, as the Parliament prescribes.”two, as the Parliament prescribes.”

S71 Constitution:S71 Constitution:

Vests the judicial power of the Commonwealth Vests the judicial power of the Commonwealth in the High Court and other Chapter III Courts.in the High Court and other Chapter III Courts.

Acknowledges that the Federal Parliament can Acknowledges that the Federal Parliament can invest State courts with Federal jurisdiction – invest State courts with Federal jurisdiction – (mentioned in s77(iii) of the Constitution) – and (mentioned in s77(iii) of the Constitution) – and provides foundation for cross vesting scheme. provides foundation for cross vesting scheme.

Makes clear that the judicial power of the Makes clear that the judicial power of the Commonwealth can only be exercised by these Commonwealth can only be exercised by these s71 courts – or that the judicial power is clearly s71 courts – or that the judicial power is clearly separated from the legislative and executive separated from the legislative and executive powers. powers.

Two questions:Two questions:

PowerPower – Is the power that the court – Is the power that the court is to exercise consistent with the is to exercise consistent with the judicial power - dealt with by judicial power - dealt with by considering the nature of judicial considering the nature of judicial power , and power , and

JurisdictionJurisdiction – usually dealt with by – usually dealt with by considering the relevant legislation considering the relevant legislation with created the courtwith created the court

Huddart, Parker & Co Pty LtdHuddart, Parker & Co Pty Ltd v v Moorehead Moorehead (1909) 8 CLR 330 at 357 per Griffiths CJ:(1909) 8 CLR 330 at 357 per Griffiths CJ:

““I am of opinion that the words I am of opinion that the words ‘judicial power’ as used in sec 71 of ‘judicial power’ as used in sec 71 of the Constitution mean the power the Constitution mean the power which every sovereign authority must which every sovereign authority must of necessity have to decide of necessity have to decide controversies between its subjects, or controversies between its subjects, or between itself and its subjects, between itself and its subjects, whether the rights relate to life, whether the rights relate to life, liberty or property. The exercise of liberty or property. The exercise of this power does not begin until some this power does not begin until some tribunal which has power to give a tribunal which has power to give a binding and authoritative decision binding and authoritative decision (whether subject to appeal or not) is (whether subject to appeal or not) is called upon to take action.”called upon to take action.”

““Judicial Power”Judicial Power”

Three elements Three elements a controversy between partiesa controversy between partieswhich concerns rights – relating which concerns rights – relating to either life, liberty or propertyto either life, liberty or property

in respect of which a binding or in respect of which a binding or conclusive decision can be conclusive decision can be reached.reached.

Judicial power of the Judicial power of the CommonwealthCommonwealth

s73: a “judgement, decree, order or s73: a “judgement, decree, order or sentence” sentence” e.g. e.g. SaffronSaffron v v The QueenThe Queen (1953) 88 CLR 523(1953) 88 CLR 523 oror

ss75-77 a “matter” ss75-77 a “matter” e.g. e.g. In re Judiciary and Navigation ActsIn re Judiciary and Navigation Acts

(1921) 29 CLR 257(1921) 29 CLR 257

Alexander’s caseAlexander’s case

Waterside Workers FederationWaterside Workers Federation v v J WJ W Alexander LtdAlexander Ltd (1918) 25 CLR 434(1918) 25 CLR 434

Difference between judicial and non Difference between judicial and non judicial powerjudicial power

s72 Commonwealth Constitution: s72 Commonwealth Constitution: judges appointed for life (now until judges appointed for life (now until retirement age of 70)retirement age of 70)

Barton J at 451: judicial powerBarton J at 451: judicial power ““It is the power of a Court to It is the power of a Court to

decide and pronounce a decide and pronounce a judgement and carry it into effect judgement and carry it into effect between persons and parties who between persons and parties who bring a case before it for bring a case before it for decision….decision….

It is the power of a Court to decide It is the power of a Court to decide and pronounce a judgement and and pronounce a judgement and carry it into effect between carry it into effect between persons and parties who bring a persons and parties who bring a case before it for decision.”case before it for decision.”

LLectures on the Constitution of the United States given by Miller J of ectures on the Constitution of the United States given by Miller J of the Supreme Court of the United States to the law students of the the Supreme Court of the United States to the law students of the National University at Washington in 1889 and 1890National University at Washington in 1889 and 1890

““From the earliest times, when people have From the earliest times, when people have associated themselves into settled communities, associated themselves into settled communities, their interest has dictated to them the adoption of their interest has dictated to them the adoption of rules of conduct as the alternative to anarchy and rules of conduct as the alternative to anarchy and as the only means of securing internal peace in the as the only means of securing internal peace in the pursuit of their avocations. The making of such pursuit of their avocations. The making of such rules, by whatever term it may have been known, is rules, by whatever term it may have been known, is the making of laws; that is, it is legislation. But laws the making of laws; that is, it is legislation. But laws of themselves were of little force without bodies of themselves were of little force without bodies which could enforce them- and authorities with which could enforce them- and authorities with power to enforce them were created. These power to enforce them were created. These authorities might or might not be called Judges, the authorities might or might not be called Judges, the tribunals might not be called Courts, and the power tribunals might not be called Courts, and the power which they exercised might or might not be called which they exercised might or might not be called judicial power. Whether persons were Judges, judicial power. Whether persons were Judges, whether tribunals were Courts, and whether they whether tribunals were Courts, and whether they exercised what is now called judicial power, exercised what is now called judicial power, depended and depends on substance and not on depended and depends on substance and not on mere name. Enforceable decision by an authority mere name. Enforceable decision by an authority constituted by law at the suit of a party submitting constituted by law at the suit of a party submitting a case to it for decision is in character a judicial a case to it for decision is in character a judicial function.” function.” Barton J 451Barton J 451

Powers J at 485Powers J at 485““a Court of judicature is a Court to settle a Court of judicature is a Court to settle existing rights between parties, but a existing rights between parties, but a compulsory arbitration Court is not a Court compulsory arbitration Court is not a Court to settle existing rights. Its powers are to settle existing rights. Its powers are more legislative than judicial. It is more legislative than judicial. It is empowered to fix by an award, which is to empowered to fix by an award, which is to have the effect of law, what wages are to be have the effect of law, what wages are to be paid … The award is binding as a paid … The award is binding as a declaration of the law on persons who have declaration of the law on persons who have not had any existing rights prior to the not had any existing rights prior to the award, for it compels employers to pay the award, for it compels employers to pay the minimum wage fixed by the award …. The minimum wage fixed by the award …. The Arbitration Court is only asked to make an Arbitration Court is only asked to make an award when employers or employees are award when employers or employees are not content with existing rights and would not content with existing rights and would not be content with any declaration as to not be content with any declaration as to existing rights.”existing rights.”

Isaacs and Rich JJ at 463-4Isaacs and Rich JJ at 463-4 ““Both [the judicial and arbitral power] Both [the judicial and arbitral power]

presuppose a dispute, and a hearing or presuppose a dispute, and a hearing or investigation, and a decision. But the investigation, and a decision. But the essential difference is that the judicial essential difference is that the judicial power is concerned with the power is concerned with the ascertainment, declaration and ascertainment, declaration and enforcement of the rights and liabilities of enforcement of the rights and liabilities of the parties as they exist, or are deemed to the parties as they exist, or are deemed to exist, at the moment the proceedings are exist, at the moment the proceedings are instituted; whereas the function of arbitral instituted; whereas the function of arbitral power in relation to industrial disputes is power in relation to industrial disputes is to ascertain and declare, but not enforce, to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought what in the opinion of the arbitrator ought to be the respective rights and liabilities of to be the respective rights and liabilities of the parties in relation to each other”.the parties in relation to each other”.

RR v v DavisonDavison (1954) 90 CLR 353 at 369(1954) 90 CLR 353 at 369

““The truth is that the ascertainment The truth is that the ascertainment of existing rights by the judicial of existing rights by the judicial determination of issues of fact or determination of issues of fact or law falls exclusively within judicial law falls exclusively within judicial power so that the Parliament cannot power so that the Parliament cannot confide the function to any person or confide the function to any person or body but a court constituted under body but a court constituted under ss71 and 72 of the Constitution.” ss71 and 72 of the Constitution.”

Separation of PowersSeparation of Powers

Sir Gerard Brennan:Sir Gerard Brennan:““The Courts are an important element in the The Courts are an important element in the system of checks and balances that preserves our system of checks and balances that preserves our societies from a concentration of official power societies from a concentration of official power that might otherwise oppress the people and that might otherwise oppress the people and restrict their freedom under the law. The Courts restrict their freedom under the law. The Courts are an organ of Government but they are not part are an organ of Government but they are not part of the Executive Government of that country. … But of the Executive Government of that country. … But the apolitical organ of government, the Courts, are the apolitical organ of government, the Courts, are there continually to extend the protection of the there continually to extend the protection of the law equally to all who are subject to their law equally to all who are subject to their jurisdiction: to the minority as well as the majority, jurisdiction: to the minority as well as the majority, the disadvantaged as well as the powerful, to the the disadvantaged as well as the powerful, to the sinners as well as the saints, to the politically sinners as well as the saints, to the politically incorrect as well as those who embrace a incorrect as well as those who embrace a contemporary orthodoxy. The principle of judicial contemporary orthodoxy. The principle of judicial independence is not proclaimed in order to benefit independence is not proclaimed in order to benefit the Judges; it is proclaimed in order to guarantee a the Judges; it is proclaimed in order to guarantee a fair and impartial hearing and an unswerving fair and impartial hearing and an unswerving obedience to the rule of law. That is the way in obedience to the rule of law. That is the way in which our peoples secure their freedom under the which our peoples secure their freedom under the law.”law.”

Boilermakers caseBoilermakers case

RR v v Kirby; ex parte Boilermakers’ Kirby; ex parte Boilermakers’ SocietySociety of Australiaof Australia (1956) 94 CLR 254(1956) 94 CLR 254

Separation of powersSeparation of powers ““in a Federal system, the absolute in a Federal system, the absolute

independence of the judiciary is independence of the judiciary is the bulwark of the Constitution the bulwark of the Constitution against encroachments whether against encroachments whether by the Legislature or by the by the Legislature or by the Executive” Executive” Privy Council at 540Privy Council at 540

High Court (at 267)High Court (at 267) ““in a federal form of government a part is in a federal form of government a part is

necessarily assigned to the judicature which necessarily assigned to the judicature which places it in a position unknown in a unitary places it in a position unknown in a unitary system or under a flexible constitution system or under a flexible constitution where Parliament is supreme…The where Parliament is supreme…The conception of independent governments conception of independent governments existing in the one area and exercising existing in the one area and exercising powers in different fields of action carefully powers in different fields of action carefully defined by law could not be carried into defined by law could not be carried into practical effect unless the ultimate practical effect unless the ultimate responsibility of deciding upon the limits of responsibility of deciding upon the limits of respective powers of the governments were respective powers of the governments were placed in the federal judicature. placed in the federal judicature.

Separation of judicial powerSeparation of judicial power““Chapter III does not allow the exercise Chapter III does not allow the exercise of a jurisdiction which of its very nature of a jurisdiction which of its very nature belongs to the judicial power of the belongs to the judicial power of the Commonwealth by a body established Commonwealth by a body established for purposes foreign to the judicial for purposes foreign to the judicial power, notwithstanding that it is power, notwithstanding that it is organized as a court and in a manner organized as a court and in a manner which might otherwise satisfy ss71 and which might otherwise satisfy ss71 and 72, and that Chap III does not allow a 72, and that Chap III does not allow a combination with judicial power of combination with judicial power of functions which are not ancillary or functions which are not ancillary or incidental to its exercise but are incidental to its exercise but are foreign to it”foreign to it” (at 296)(at 296)

WilsonWilson v v Minister for Aboriginal and Minister for Aboriginal and Torres Strait Islander AffairsTorres Strait Islander Affairs

(1996) 189 CLR 1(1996) 189 CLR 1 ““the separation of functions is the separation of functions is

designed to provide checks designed to provide checks and balances on the exercise and balances on the exercise of power by the respective of power by the respective organs of government in organs of government in which powers are reposed.”which powers are reposed.” per per Brennan CJ, Dawson, Toohey, McHugh and Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ at 11Gummow JJ at 11

Persona Designata rulePersona Designata rule

HiltonHilton v v WellsWells (1985) 157CLR 57(1985) 157CLR 57 ““Although the Parliament cannot Although the Parliament cannot

confer non –judicial powers on a confer non –judicial powers on a federal court, or invest a State federal court, or invest a State court with a non-judicial power, court with a non-judicial power, there is no necessary there is no necessary constitutional impediment which constitutional impediment which prevents it from conferring non-prevents it from conferring non-judicial power on a particular judicial power on a particular individual who happens to be a individual who happens to be a member of a court” member of a court” (at 68 Per Gibbs CJ, (at 68 Per Gibbs CJ, Wilson and Dawson JJ.)Wilson and Dawson JJ.)

Delegation of Federal Judicial Delegation of Federal Judicial PowerPower

HarrisHarris v v CaladineCaladine (1991) 172 CLR 84(1991) 172 CLR 84

Power can be delegated but:Power can be delegated but: the delegation cannot be such the delegation cannot be such

that the judges no longer manage that the judges no longer manage the more important aspects of the more important aspects of contested matters, and contested matters, and

the exercise of the delegated the exercise of the delegated power must be subject to review power must be subject to review by the judges themselves.by the judges themselves.

Cross Vesting SchemeCross Vesting Scheme

s77(iii) Constitutions77(iii) Constitution s39(2) Judiciary Acts39(2) Judiciary Act ““The several Courts of the States The several Courts of the States

shall within the limits of their several shall within the limits of their several jurisdictions, whether such limits are jurisdictions, whether such limits are as to locality, subject-matter or as to locality, subject-matter or otherwise, be invested with federal otherwise, be invested with federal jurisdiction, in all mattersjurisdiction, in all matters in which in which the High Court has original the High Court has original jurisdiction or in which original jurisdiction or in which original jurisdiction can be conferred on it.”jurisdiction can be conferred on it.”

Issues with Cross VestingIssues with Cross Vesting

KableKable v v Director of Public Director of Public ProsecutionsProsecutions (NSW)(NSW) (1996) 189 CLR 51(1996) 189 CLR 51

Re Wakim; ex parte McNallyRe Wakim; ex parte McNally (1999) (1999) 163 ALR 270163 ALR 270

JurisdictionJurisdiction

StatuteStatute Court rulesCourt rules Practice NotesPractice Notes

Commonwealth or Ch III CourtsCommonwealth or Ch III Courts

High Court of AustraliaHigh Court of Australia ConstitutionConstitution ss71-77 ss71-77 Judiciary Act 1903Judiciary Act 1903 (Cth) (Cth)

Federal Court of AustraliaFederal Court of Australia Federal Court of Australia Act 1976Federal Court of Australia Act 1976 (Cth) (Cth)

Family Court of AustraliaFamily Court of Australia Family Law Act 1975Family Law Act 1975 (Cth) (Cth)

Federal Magistrates Court of Federal Magistrates Court of AustraliaAustralia Federal Magistrates Court Act 1999Federal Magistrates Court Act 1999

(Cth) (Cth)

NSW CourtsNSW Courts

Supreme Court of New South Supreme Court of New South WalesWales Supreme Court Act 1970Supreme Court Act 1970 (NSW) (NSW)

District Court of New South WalesDistrict Court of New South Wales District Court Act 1973District Court Act 1973 (NSW) (NSW)

Local CourtsLocal Courts Local Courts (Civil Claims) Act 1970Local Courts (Civil Claims) Act 1970

(NSW)(NSW)

Non-judicial tribunalsNon-judicial tribunals

Commonly appear in ‘hierarchy’ Commonly appear in ‘hierarchy’ diagramsdiagrams

BUT - exercise executive – not BUT - exercise executive – not judicial functionjudicial function

‘‘members’ rather than judgesmembers’ rather than judges

Commonwealth TribunalsCommonwealth Tribunals Administrative Appeals TribunalAdministrative Appeals Tribunal Australian Competition and Consumer CommissionAustralian Competition and Consumer Commission Australian Competition TribunalAustralian Competition Tribunal Australian Industrial Relations CommissionAustralian Industrial Relations Commission Australian Securities CommissionAustralian Securities Commission Copyright TribunalCopyright Tribunal Refugee Review TribunalRefugee Review Tribunal Registrar of Trade MarksRegistrar of Trade Marks The Commissioner of TaxationThe Commissioner of Taxation Human Rights and Equal Opportunities Human Rights and Equal Opportunities

CommissionCommission National Native Title TribunalNational Native Title Tribunal Australian Broadcasting AuthorityAustralian Broadcasting Authority Veteran’s Review BoardVeteran’s Review Board

NSW TribunalsNSW Tribunals

Dust and Diseases TribunalDust and Diseases Tribunal Administrative Decisions TribunalAdministrative Decisions Tribunal Consumer Trader and Tenancy Consumer Trader and Tenancy

TribunalTribunal Guardianship TribunalGuardianship Tribunal

Tribunal?Tribunal?

‘‘Court substitute’ – only in a State contextCourt substitute’ – only in a State context e.g. NSW Consumer, Trader and Tenancy e.g. NSW Consumer, Trader and Tenancy

TribunalTribunal Review administrative/executive decisionsReview administrative/executive decisions

‘‘merits review’ – e.g. Administrative Appeals merits review’ – e.g. Administrative Appeals Tribunal or Administrative Decisions TribunalTribunal or Administrative Decisions Tribunal

Non-judicial functionNon-judicial function Professional Disciplinary TribunalProfessional Disciplinary Tribunal

e.g. Medical Tribunale.g. Medical Tribunal

Courts/TribunalsCourts/Tribunals

CourtsCourts Exercise judicial powerExercise judicial power Set precedentSet precedent Judges – independent of executive Judges – independent of executive

control with security of tenurecontrol with security of tenure Legal representation standardLegal representation standard Rules of evidenceRules of evidence Hearings publicHearings public adversarialadversarial Can be slow and expensiveCan be slow and expensive

Courts/TribunalsCourts/Tribunals

TribunalsTribunals Exercise executive powerExercise executive power Merits review, not judicial reviewMerits review, not judicial review Commonwealth Separation of Powers – Commonwealth Separation of Powers –

important differences between State important differences between State and Federal Tribunals.and Federal Tribunals.

‘‘member’ – not always legally trained; member’ – not always legally trained; appointed for a fixed term; subject to appointed for a fixed term; subject to reappointmentreappointment

No precedentNo precedent

Tribunals continuedTribunals continued

Rules of evidence not requiredRules of evidence not required Less legal representation and less Less legal representation and less

adversarial (tribunal dependant)adversarial (tribunal dependant) Intended to be less formal, cheaper, Intended to be less formal, cheaper,

faster and more accessible to faster and more accessible to ‘ordinary people’. (This can very ‘ordinary people’. (This can very widely from tribunal to tribunal.)widely from tribunal to tribunal.)