Johnston, Peter; Hardcastle, Rohan --- "State Courts: The Limits of Kable" [1998] SydLawRw 10; (1998) 20 (2) Sydney Law Review 216
[*] Peter Johnston, BA LLB (Hons) LLM (UWA), Barrister at Law, Visiting Fellow University of Western Australia. Rohan Hardcastle BA LLB (Hons) (UWA). Associate to Justice French of the Federal Court. This article is based on the research of Mr Hardcastle undertaken for the purpose of his Honours dissertation.
[1] 63 and 64 Vic, c12 (1900) (UK).
[2] Commonwealth of Australia Constitution Act 63 and 64 Vic, c12 (1900) (UK), s9.
[3] Covering cl 5.
[4] Commonwealth Constitution, s106. Section 106 provides: “The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.” For judicial and academic discussion of the effect of s106 on State legislative power see Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 139 per Brennan CJ; McGinty v Western Australia [1996] HCA 48; (1996) 134 ALR 289 at 298 per Brennan CJ; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 156 per Brennan J; at 164–166 per Deane J; Nicholas v Western Australia [1972] WAR 168 at 173 per Jackson CJ; Douglas, N, “The Western Australian Constitution: Its Source of Authority and the Relationship with s106 of the Australian Constitution” (1990) 20 UWALR 340; Quick, J and Garran, RR, The Annotated Constitution of the Australian Commonwealth (1901) at 931.
[5] [1996] HCA 24; (1996) 138 ALR 577.
[6] Ibid, Toohey, Gaudron, McHugh and Gummow JJ (Brennan CJ, Dawson J dissenting).
[7] Although subject to the Commonwealth Constitution (s106), the plenary nature of State legislative power flows from the grant of power under State constitutions to make laws “for the peace, order and good government”: Constitution Act 1889 (WA), s2(1); Constitution Act 1902 (NSW), s5 (“for the peace, welfare and good government of NSW”); Constitution Act 1975 (Vic), s16 (“laws in and for Victoria in all cases whatsoever”); Constitution Act 1934 (SA), s5 (“for the peace, welfare and good government”); Australia Constitutions Act 1850, s14 (“for the peace, welfare and good government”). These are not words of limitation; Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 10 per Mason CJ; Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Further, this power continued after the establishment of the Commonwealth by s106 of the Commonwealth Constitution; Union Steamship Co of Australia Pty Ltd v King at 14 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
[8] Miller, J, “Criminal Cases in the High Court of Australia” (1997) 21 Crim LJ 92 at 100. Walker has argued that the separation of powers doctrine has been “extended to the State courts to a limited extent by Kable”; Walker, K, “Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?” [1997] UNSWLawJl 26; (1997) 20 UNSWLJ 257 at 271.
[9] Campbell argues that Kable has “far-reaching implications for the States... [and] casts doubts on ... a variety of State measures”; Campbell, E, “Constitutional Protection of State Courts and Judges” [1997] MonashULawRw 24; (1997) 23 MonashULR 397 at 408.
[10] Of course, such a Commonwealth constitutional requirement imposes financial costs on the States and there appears to be no obligation in the Commonwealth Constitution for the Commonwealth Parliament to provide funding for State courts.
[11] For example, recent challenges to State sentencing legislation on the basis of Kable have been unsuccessful; Wynbyne v Marshall [1997] NTSC 120; (1997) 117 NTR 11 (challenging the Sentencing Amendment Act (No 2) 1996 (NT), s8); R v Moffatt (1997) 91 ACrimR 557 (challenging the Sentencing Act 1991 (Vic), s18). See also Felman v Law Institute (1997) 150 ALR 363 per Kenny JA.
[12] For examples of recent comparative constitutional law analysis see Thomson, J A, “American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law” (1997) 30 John Marshall LR 627; Rich, W, “Converging Constitutions: A Comparative Analysis of Constitutional Law in the United States and Australia” (1993) 21 Fed LR 202. For a comparative analysis at State level see Thomson, J A, “State Constitutional Law: Some Comparative Perspectives” (1989) 20 Rutgers LJ 1059. There has also been a renewed interest in State constitutional law in the United States; Peters, E A, “Getting Away from the Federal Paradigm: Separation of Powers in State Courts” (1997) 81 Minnesota LR 1543; Utter, R F, “State Constitutional Law, The United States Supreme Court, and Democractic Accountability: Is There a Crocodile in the Bathtub?” (1989) 64 Washington LR 19.
[13] (1997) 150 DLR (4th) 577.
[14] Above n5 at 608 per Gaudron J; at 636 per Gummow J.
[15] Community Protection Act 1994 (NSW), s3.
[16] Id, ss5(1)(a), (b).
[17] Community Protection Act 1990 (Vic). For academic commentary on the Victorian legislation see Wood, D, “A One Man Dangerous Offenders Statute – The Community Protection Act 1990 (Vic)” [1990] MelbULawRw 7; (1990) 17 MULR 497; Williams, C R, “Psychopathy, Mental Illness and Preventative Detention: Issues Arising from the David Case” [1990] MonashULawRw 10; (1990) 16 Monash U LR 161. See also above n5 at 627 per McHugh J. For an example of general preventive detention legislation see s653 of the Criminal Code 1913 (WA) which vests power in the Governor to keep in safe custody a person who has been acquitted of an indictable offence on the ground of unsoundness of mind. For judicial discussion of s653 see Wilsmore v Court [1983] WAR 190.
[18] Above n5 at 606 per Toohey J.
[19] Id at 605 per Toohey J.
[20] Id at 606 per Toohey J.
[21] Id at 605 per Toohey J.
[22] Id at 606 per Toohey J.
[23] This was acknowledged in Western Australia v Ward [1997] FCA 585; (1997) 145 ALR 512 at 517 per Hill and Sundberg JJ.
[24] [1995] HCA 26; (1995) 184 CLR 348.
[25] [1996] HCA 18; (1996) 138 ALR 220. See above n23 at 517 per Hill and Sundberg JJ.
[26] Above n24 at 365 per Brennan CJ, Deane, Dawson and Toohey JJ.
[27] Above n5 at 608 per Toohey J; Walker, K, “Persona Designata, Incompatibility and the Separation of Powers” (1997) 8 PLR 153 at 166.
[28] Above n5 at 608 per Toohey J.
[29] Id at 611 per Gaudron J; at 622–623 per McHugh J; at 644 per Gummow J.
[30] Id at 612 per Gaudron J; at 618 per McHugh J; at 642 per Gummow J.
[31] For judicial and academic discussion of this principle see Leeth v Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ; Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 at 61 per Mason J; Russell v Russell (1976) 134 CLR 495 at 516–517 per Gibbs J; at 530 per Stephen J; at 535 per Mason J; 535 at 554 per Jacobs J; Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 at 109 per Gibbs J; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25 at 37 per Latham CJ; Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481 at 496 per Knox CJ, Rich and Dixon JJ; Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander [1912] HCA 42; (1912) 15 CLR 308 at 313 per Griffith CJ; Lane, P H, Lane’s Commentary on The Australian Constitution (2nd edn, 1997) at 463; Cowen, Z and Zines, L, Federal Jurisdiction in Australia (2nd edn, 1978) at 184–186; Wynes, W A, Legislative, Executive and Judicial Powers (5th edn, 1976) at 494; Bailey, K H, “The Federal Jurisdiction of State Courts” (1940) 2 Res Judicatae 109 at 109.
[32] Above n5 at 611 per Gaudron J; at 621 per McHugh J.
[33] This was recognised in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [1997] FCA 575; (1997) 145 ALR 500 at 507 per Tamberlin J.
[34] Although Gummow J held that the Commonwealth Constitution provided for an integrated Australian judicial system he did not use this proposition to address judicial authority establishing that the Commonwealth Parliament must take State courts as it finds them.
[35] In this regard, one academic commentator has observed “the majority approach is surely to be preferred”, although not specifying which members of the majority; Miller, above n8. For a different view see Handsley, E, “Do Hard Laws Make Bad Cases? – The High Court’s Decision in Kable v Director of Public Prosecutions (NSW)” (1997) 25 Fed LR 171 at 179.
[36] Gould v Brown (1998) 151 ALR 395 at 485–486 per Kirby J (footnote omitted). Kirby J did not sit in Kable, having presided over the NSW Court of Appeal decision in Kable v Director of Public Prosecutions (1995) 36 NSWLR 374. See also, Re Australasian Memory and Corporations Law; Brien v Australasian Memory (1997) 149 ALR 393 at 429 per Santow J.
[37] Nicholas v R [1998] HCA 9; (1998) 151 ALR 312 at 334 per Gaudron J; at 345 per McHugh J; at 355 per Gummow J; at 374–375 per Kirby J; Gould v Brown, above n36 at 423 per Gaudron J; at 441 per McHugh J; at 459–460 per Gummow J; at 485–486 Kirby J.
[38] As will be further discussed, a distinction may be drawn between a particular court established under State legislation and a general judicature embracing all courts that may exist from time to time.
[39] Le Mesurier v Connor, above n31 at 495 per Knox CJ, Rich and Dixon JJ; Thomson, J A, “Are State Courts Invulnerable? Some Preliminary Notes” [1990] UWALawRw 5; (1990) 20 UWALR 61 at 63. See for example, Supreme Court Act 1953 (WA).
[40] For a different view see Newcombe v AME Properties Ltd (1995) 14 WAR at 266 per Malcolm CJ. Note the exception of Victoria, because the Victorian Supreme Court is constitutionally entrenched by the Constitution Act 1975 (Vic), Part III. Although the State Constitutions of New South Wales, South Australia, Queensland and Western Australia contain provisions dealing with judicial tenure, they do not expressly entrench their Supreme Courts. Subsections 73(2) and s73(6) of the Constitution Act 1889 (WA) might indirectly do so. Those provisions entrench the right of an elector to take action in the Supreme Court for a breach of s73 (which deals with matters such as the position of the Governor and the two house of Parliament). See below n134 regarding s73(6).
[41] Similar questions were originally asked by Thomson, J A, “Are State Courts Invulnerable? Some Preliminary Notes” [1990] UWALawRw 5; (1990) 20 UWALR 61 at 71.
[42] Above n5 at 611 per Gaudron J; at 618 per McHugh J; at 641 per Gummow J; Campbell, above n9 at 406; Waugh, J, “The Victorian Government and the Jurisdiction of the Supreme Court” [1996] UNSWLawJl 19; (1996) 19 UNSWLJ 409 at 429.
[43] Above n5 at 617 per McHugh J. For a different view see Le Mesurier v Connor, above n31 at 495 per Knox CJ, Rich and Dixon JJ.
[44] Above n5 at 618 per McHugh J. See also, Gould v Brown, above n36 at 442 per McHugh J; at 459 per Gummow J.
[45] Above n25 at 642 per Gummow J.
[46] Id at 641.
[47] Id at 611 per Gaudron J.
[48] Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 599 per Gaudron J.
[49] Lederman, W R, “The Independence of the Judiciary” (1956) 34 Can BR 1139 at 1173.
[50] Providing an appeal from State Supreme Courts to the High Court.
[51] Providing for State courts to be invested with federal jurisdiction.
[52] Note the argument that although the High Court has appellate jurisdiction under these constitutional provisions, this jurisdiction is based on Commonwealth legislation given the exceptions clause in s73 of the Commonwealth Constitution: Smith Kline & French Laboratories (Australia) Ltd v Commonwealth [1991] HCA 43; (1991) 173 CLR 194. On this interpretation of the High Court’s appellate jurisdiction it may not be unconstitutional for a State legislature to remove all non-federal jurisdiction from a State Supreme Court.
[53] Above n5 at 623 per McHugh J; at 641 per Gummow J. See also, Campbell, above n9 at 412.
[54] It has also been suggested that it may be unconstitutional for a State law to prevent an appeal from a decision of an inferior State court to the Supreme Court; McPherson, B H, “Current Issues” (1996) 70 ALJ 945 at 947.
[55] For example, Declaration of Principles on Judicial Independence Issued by the Chief Justices of the Australian States and Territories (1997) 15 AustBR 176 par 3; Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (1997) 15 AustBR 178 par 29; Pullin, C, “Declaration of Principles on Judicial Independence” (1997) 15 AustBR 173; Kirby, M D, “Independence of the Judiciary” [1996] Prima Facie 3 at 5–7; Malcolm, D, “The Beijing Statement of Principles of the Independence of the Independence of the Judiciary in the LAWASIA Region” (1996) 70 ALJ 299; Brennan, G, “Courts for the People – Not People’s Courts” [1995] DeakinLawRw 1; (1995) 2 Deakin LR 1 at 11; Kirby, M D, “Abolition of Courts and Non-reappointment of Judicial Officers” (1995) 12 AustBR 181.
[56] Above n5 at 618 per McHugh J. It is arguable, however, that this principle should only apply where there are no Federal courts. For example, if there are Federal courts there may be no need for State courts to exist to exercise federal jurisdiction.
[57] Ibid.
[58] Ibid.
[59] Id at 642 per Gummow J.
[60] This conclusion accords with practice in other jurisdictions. For example, in Canada, most Canadian provinces have abolished their intermediate level District or County Courts, leaving only superior and lower Provincial courts; McPherson, above n57 at 947.
[61] Above n5 at 611 per Gaudron J.
[62] Id at 617 per McHugh J.
[63] Id at 642 per Gummow J.
[64] Ibid.
[65] However, note that when a State court is invested, by State legislation, only with State jurisdiction, it may still have covering cl 5 jurisdiction. See Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 at 1136; Harvey, L and Thomson, J A, “Some Aspects of State and Federal Jurisdiction Under the Australian Constitution” [1979] MonashULawRw 3; (1980) 5 Monash ULR 228 at 230; Lane, above n31 at 562; Quick, J, The Legislative Powers of the Commonwealth and the States of Australia with Proposed Amendments (1919) at 727.
[66] State courts are invested with federal jurisdiction “in all matters in which the High Court has original jurisdiction”; Judiciary Act 1903 (Cth), s39(2).
[67] For example, under s39(2) of the Judiciary Act 1903 (Cth).
[68] Kable, above n5 at 605 per Toohey J.
[69] Section 77(iii) of the Commonwealth Constitution and s39(2) of the Judiciary Act 1903 (Cth) invested jurisdiction in the NSW Supreme Court to determine those questions.
[70] Kable, above n5 at 609 per Toohey J.
[71] Id at 599 per Dawson J.
[72] Re Australasian Memory and Corporations Law; Brien v Australasian Memory, above n36 at 431.
[73] Kable, above n5 at 638 per Gummow J.
[74] Id at 643 per Gummow J.
[75] Ibid.
[76] Ibid.
[77] See pp224–225.
[78] Kable, above n5 at 612 per Gaudron J.
[79] Id at 615 per Gaudron J.
[80] Id at 622 per McHugh J.
[81] Id at 624 per McHugh J.
[82] Id at 621 per McHugh J.
[83] Above n11.
[84] Moffatt, above n11 at 577 per Hayne J A. For a fuller discussion of Moffatt see below n128–141 and accompanying text.
[85] Ibid.
[86] Now appointed to the High Court.
[87] For a discussion of this mechanism see: Lane, above n31 at 625.
[88] Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 385 per Windeyer J.
[89] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 92 per Mason and Deane JJ; at 107 per Brennan J, at 137–138 per Toohey J; at 143 per Gaudron J; at 157 per McHugh J; Commonwealth v Hospital Contribution Fund of Australia, above n31 at 61 per Mason J; Lane, above n31 at 628.
[90] Supreme Court Act 1935 (WA).
[91] District Court of Western Australia Act 1969 (WA).
[92] Local Courts Act 1904 (WA).
[93] Justices Act 1902 (WA).
[94] See Crawford, J, “The New Structure of Australian Courts” [1978] AdelLawRw 1; (1978) 6 AdelLR 201 at 210. Note that the WA Supreme Court is also invested specifically with federal jurisdiction by s383 of the Electoral Act 1918 (Cth).
[95] Industrial Relations Act 1979 (WA).
[96] Ibid.
[97] Commercial Tribunal Act 1984 (WA).
[98] Town Planning and Development Act (WA).
[99] Liquor Licensing Act 1988 (WA).
[100] Mining Act 1978 (WA).
[101] Under s51(1) of the Accident Compensation Act 1985 (Vic), the Tribunal was constituted as a court. Section 41(2) of the Act provided that its members were accorded the rank and status of a judge of the County Court. Section 41(1) provided that they received the same remuneration as received by judges of the County Court. Section 41(3) provided the judges with security of tenure.
[102] Campbell, above n9 at 398. Although, note that there has been criticism of this practice; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 6 per Street CJ.
[103] Wilson and Others v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 138 ALR 220 at 250–251 per Kirby J; Winterton, G, “Judges as Royal Commissioners” [1987] UNSWLawJl 8; (1987) 10 UNSWLJ 108 at 121; McInerney, M, “The Appointment of Judges to Commissions of Inquiry and Other Extra-Judicial Activities” (1978) 52 ALJ 540. For specific examples see Connor J, “The Use of Judges in Non-Judicial Roles” (1978) 52 ALJ 482 at 483.
[104] Walker, above n27 at 166; Smith, M, “Recent Cases” (1996) 70 ALJ 963 at 970.
[105] Kable, above n5 at 623 per McHugh J. Sir Gerard Brennan, in the context of discussing federal judges, also observed that the issue of judges acting persona designata was a question of determining the potential “risk of loss of confidence in the judiciary”; Brennan, G, “Limits on the Use of Judges” (1978) 9 Fed LR 1 at 14.
[106] See Schoff, P, “The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function?” (1997) 25 Fed LR 317 at 347. For a different view see Walker, above n8 at 271.
[107] Kable, above n5 at 623 per McHugh J.
[108] For further examples of the Chief Justice of Western Australia acting as a constituent of the legislature and chief executive see Marquet, L B, “The Separation of Powers Doctrine and the Constitution of Western Australia” (1990) 20 UWALR 445 at 449.
[109] Walker, above n27 at 166. For a different view see Campbell, above n9 at 414.
[110] For a discussion of the two dimensions of judicial independence see Reference re Remuneration of Judges, above n13 at 632 per Lamer CJC.
[111] For a similar view see Campbell, above n9 at 414.
[112] Kable, above n5 at 612 per Gaudron J.
[113] This was recognised by Tamberlin J in Hi-Fert Pty Ltd v Kiukiang Maritime, above n33 at 507 per Tamberlin J.
[114] Either on the basis of Toohey J’s approach, that the State court is exercising federal jurisdiction, Gummow J’s approach, that the matter can be appealed to the High Court or Gaudron and McHugh JJ’s approach, that the State court is invested with federal jurisdiction.
[115] Re Australasian Memory v Australasian Memory, above n36 at 432 per Santow J.
[116] Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447 at 455 per Fitzgerald P. For academic commentary see Lane, above n 31 at 463; Campbell, above n9 at 409; Handsley, above n35 at 175.
[117] Above n24.
[118] Kable, above n5 at 608 per Toohey J; at 612 per Gaudron J.
[119] Walker, above n27 at 165–166.
[120] For a different interpretation of the application of the Grollo incompatibility doctrine see Handsley, above n35 at 175.
[121] Nicholas v R, above n 37 at 375 per Kirby J; Sackville, R, “Continuity and Judicial Creativity – Some Observations” [1997] UNSWLawJl 16; (1997) 20 UNSWLJ 145 at 167; Roberts, R, “Retrospective Criminal Laws and the Separation of Judicial Power” (1997) 8 PLR 170 at 179; Smith, above n104 at 969.
[122] This was recognised in Nicholas v R, above n37 at 375 per Kirby J.
[123] For example Laurance v Katter, above n116; Hi-Fert Pty Ltd v Kiukiang Maritime, above n33; Western Australia v Ward, above n23.
[124] For example, Wynbyne, above n11; Lloyd v Snooks (unreported) Tas Sup Ct 16 June 1997 no 9702638; Moffatt, above n11; Leeming, M, “Courts, Tribunals and the Separation of Powers in Australia and Canada” (1997) 8 PLR 143 at 143.
[125] See Wynbyne, above n11; Moffatt, above
[126] For a similar view see Miller, above n8 at 99.
[127] Kable, above n5 at 608 per Toohey J; at 614–615 per Gaudron J; at 627 per McHugh J; at 630 per Gummow J.
[128] Sentencing Act 1991 (Vic), ss18A(1), 18A(5) and 18A(8).
[129] Sentencing Act 1991 (Vic), s18A(3).
[130] Sentencing Act 1991 (Vic), s18H. Traditionally, this function had been performed by the executive; Morgan, N, “Conditional Release From Indeterminate Sentences: Executive and Judicial Roles and Practices” in Harding, R W (ed), Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia (2nd edn, 1995) at 103.
[131] Sentencing Act 1991 (Vic), s18M.
[132] For example, Criminal Code 1913 (WA), s662(a); Penalties and Sentences Act 1992 (Qld), Part 10 – “Indefinite Sentences”; Criminal Law (Sentencing) Act 1988 (SA), Division 3 – “Sentences of Indeterminate Duration”; Criminal Code 1983 (NT), s397(1). Fox argues that there is little consistency between the States in the form of their indefinite sentencing legislation; Fox, R G, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Crim LJ 394 at 406.
[133] Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA), s7. For a discussion of s7 see Morgan, above n130 at 96; Morgan, N, “Parole and Sentencing in Western Australia” [1992] UWALawRw 5; (1992) 22 UWALR 94 at 118.
[134] In S (a Child) v R (1995) 12 WAR 392 the principal submissions of the applicant are summarised by Steytler J at 397. The applicant’s argument, while conceding that it was not based on a separation of powers doctrine, had three steps. The first was that the Supreme Court was an institution whose existence was constitutionally preserved by both s106 of the Commonwealth Constitution (as part of the “Constitution of the State”) and s73(6) of the Constitution Act 1889 (WA) (giving an elector an entrenched right to take action in the WA Supreme Court for specified breaches of the Constitution Act). The second step was that to perform its constitutional function the Supreme Court had to be independent. Thirdly, the quasigubernatorial discretions to be exercised by the Court under the Repeat Offender legislation adversely affected the Court’s independence. The WA Supreme Court held, however, that s58 of the Constitution Act, which permitted the WA Parliament to abolish any of the State courts was an “insurmountable obstacle” – at 402 per Steytler J. This was notwithstanding that s58 was arguably inconsistent with both s106 of the Commonwealth Constitution and s73(6) of the Constitution Act, the latter provision impliedly repealing s58.
[135] Kable, above n5 at 627 per McHugh J. See also, at 608 per Toohey J.
[136] [1988] HCA 62; (1988) 165 CLR 611 (discussing s662 of the Criminal Code 1913 (WA)).
[137] Moffatt, above n11 at 577 per Hayne J A. Similarly, Morgan argues that the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) may be unconstitutional because it confers nonjudicial functions on the WA Supreme Court; Morgan, above n130 at 104. See also S (a Child) v R, above n134.
[138] Moffatt, above n11 per Winneke P, Hayne JA and Charles JA. Also note that an application for special leave to appeal to the High Court in Moffatt has been refused. Gaudron J stated “[w]e are of the view that the proposed appeal does not enjoy sufficient prospects of success to attract the grant of special leave”; (1998) 5 Leg. Rep. C3.
[139] Id at 564–565 per Winneke P.
[140] Id at 579 per Hayne JA. Note also the joint judgment of Mason CJ, Dawson and McHugh JJ in Leeth v Commonwealth, above n31 at 470 which observed that “a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.”
[141] Moffatt, above n11 at 581 per Hayne JA.
[142] Morgan, above n130 at 103. Note, however, that in Moffatt Charles JA argued that the power of review could be characterised as a judicial function, above n11 at 589.
[143] Above n11.
[144] The Sentencing Amendment Act (No 2) 1996 (NT) inserted after Division 5 of Part 3 of the Sentencing Act 1995 (NT) a new Division 6 which provides for compulsory imprisonment for certain “property offences”. For a description of the operation of s78A see Trenerry v Bradley (1997) 115 NTR 1 at 5–6 per Martin CJ.
[145] Section 78A of the Sentencing Act 1995 (NT) is similar to sections 400(3) and 401(4) of the Criminal Code 1913 (WA) and Division 9, Part 7 of the Young Offenders Act 1994 (WA). Consequently, the State of Western Australia intervened in the case pursuant to s78A of the Judiciary Act 1903 (Cth).
[146] Wynbyne, above n11 at 21–22 per Mildren J (Bailey J agreeing).
[147] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ (referring to the exclusively judicial function of adjudging and punishing criminal guilt).
[148] Wynbyne, above n11 at 24–25 per Mildren J (Bailey J agreeing).
[149] Id at 14–16 per Martin CJ; at 25–26 per Mildren J (Bailey J agreeing).
[150] For example, Gerea v Director of Public Prosecutions [1986] LRC (Crim) 3 at 10–11 per Connolly J; Hinds v R [1977] AC 195 at 226 per Lord Diplock; Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 at 58–59 per Barwick CJ; Liyanage v R [1967] 1 AC 259 at 289–90 per Lord Pearce; Deaton v Attorney-General [1963] IR 170 at 181–2 per O’Dalaigh CJ.
[151] Palling v Corfield, above n150 at 58 per Barwick CJ; at 64 per Menzies J; at 68 per Walsh J. See also, Director of Public Prosecutions (Cth) v Toro-Martinez (1993) 119 ALR 517.
[152] Palling v Corfield, above n150 at 58 per Barwick CJ; at 68 per Walsh J.
[153] Id at 58 per Barwick CJ.
[154] Wynbyne, above n11 at 26 per Mildren J (Bailey J agreeing).
[155] Which impose the death penalty.
[156] Which impose a lesser penalty.
[157] [1991] HCA 32; (1991) 172 CLR 501 at 536 per Mason CJ; at 647 per Dawson J; at 721 per McHugh J; at 686 per Toohey J; Blackford, R, “Judicial Power, Political Liberty and the Post-Industrial State” (1997) 71 ALJ 267 at 277.
[158] Polyukhovich v Commonwealth, above n157 at 647.
[159] Nicholas v R, above n37 at 355 (footnote omitted).
[160] Above n13 at 632 per Lamer CJC.
[161] Above n13 at 632–633 per Lamer CJC; Above n5 at 595 per Dawson J; Valente v R [1985] 2 SCR 673 at 694–712 per Le Dain J. See also, Declaration of Principles on Judicial Independence Issued by the Chief Justices of the Australian States and Territories 10 April 1997, above n55 at 177; The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region 19 August 1995, above n55 at 183; Pullin, above n55; Malcolm, D, “The State Judicial Power” [1991] UWALawRw 1; (1991) 21 UWALR 7 at 31; Brennan, G, “Courts, Democracy and the Law” (1991) 65 ALJ 32 at 40–41.
[162] For example, McGinty, above n4 at 322 per Toohey J (referring specifically to Canadian Supreme Court decisions). For a discussion of the advantages of comparative constitutional analysis see Thomson, “American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law”, above n12 at 629, 682; Mason, A, “The Future of the High Court of Australia” (1996) 12 Qld U of Tech LJ 1 at 7–8; Mason, A, “Rights, Values and Legal Institutions” Reshaping Australian Institutions – “A New Perspective on Separation of Powers” ANU Public Lecture, 25 July 1996 at 30–31; Davies, G and Cowen, M P, “The Persuasive Force of the Decisions of United States Courts in Australia” (1996) 15 Aust BR 51 at 60.
[163] Above n13.
[164] Above n13.
[165] There may be conventions and political considerations which inhibit the legislative alteration of judicial tenure and remuneration: Macrae v Attorney-General (NSW) [1987] 9 NSWLR 268 at 278 per Kirby P; Kirby, “Abolition of Courts and Non-reappointment of Judicial Officers”, above n55 at 186; Kirby, M D, “Judicial Independence in Australia Reaches a Moment of Truth” [1990] UNSWLawJl 10; (1990) 13 UNSWLJ 187 at 189.
[166] Sections 3 and 5.
[167] New South Wales, Queensland, Western Australia, South Australia and the Northern Territory also have similar tribunals. For a summary of the form of these tribunals see Winterton, G, Judicial Remuneration in Australia (1995) at 58–75.
[168] Above n108 at 447; Cowen, Z and Derham, D P, “The Constitutional Position of Judges” (1956) 29 ALJ 705. Note the exception of Victoria: see below n173–174.
[169] Western Australia, Legislative Assembly Debates, 17 August 1983, vol 242 at 1096–7. If a State Parliament reduces judicial salaries, could a determination by the High Court that the measure is unconstitutional be enforced? Arguably, the appropriate answer is that a State could reasonably be expected to respect a High Court declaration of unlawfulness. The issue of coercive enforcement would thus be avoided, see Tonkin v Brand [1962] WAR 2 at 22 per Hale J; Attorney-General of the Commonwealth, Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 53 per Gibbs J.
[170] For a discussion of the appointment and removal of State court judges in each of the States see Lane, P H, “Constitutional Aspects of Judicial Independence” in Cunningham, H (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond (1997) at 65–73.
[171] McCawley v R [1920] AC 691 at 713 per Lord Birkenhead LC; King, L, “The Separation of Powers” in AIJA Courts in a Representative Democracy (1995) at 15. But note the exceptions of New South Wales and Victoria. See n173–176.
[172] For a discussion of sections 54 and 55 of the Constitution Act and additional means of removing Judges in Western Australia under the Colonial Leave of Absence Act 1782 (UK) (22 3 c.75) see Wheeler, C, “The Removal of Judges from Office in Western Australia” (1980) 14 UWALR 305; Green, G, “The Rationale and Some Aspects of Judicial Independence” (1985) 59 ALJ 135 at 139–141.
[173] Above n9 at 399–400; Foley, C, “Section 85 Victorian Constitution Act 1975: Constitutionally Entrenched Right ... or Wrong?” [1994] MonashULawRw 5; (1994) 20 Monash U LR 110 at 111.
[174] For example, any Act which directly appeals or amends any part of s85 must expressly refer to s85 and the member of Parliament who introduces the Bill to amend the Act is required to make a statement to the Legislative Council or Assembly of the reasons for repealing, altering or varying the section. For a summary of the context in which s85 was entrenched see Waugh, above n42 at 416–418.
[175] Part 9 of the Constitution Act 1902 (NSW) was inserted by the Constitution (Amendment) Act 1992 (NSW) and commenced on 8 December 1992 and was doubly entrenched on 2 May 1995. See Gould, K, “Judicial Independence Entrenched in New South Wales?” (1996) 34(2) Law Society Journal 71.
[176] For a discussion of the effect of these provisions see Gould, above n175; Phillips, J H, “The Courts and the Parliament” (1995) 9 Legislative Studies 72 at 73.
[177] See in particular McHugh J, who stated that State courts must be “independent of the legislature and executive government”, above n5 at 622.
[178] Indeed, on the basis of Kable, Campbell has argued that “State laws which do not accord security of tenure to the judicial officers of the State may need to be reconsidered.”, above n9 at 415.
[179] Above n13 at 594 per Lamer CJC.
[180] Part I of the Constitution Act 1982; Reference re Remuneration of Judges, above n13 at 594 per Lamer CJC.
[181] Valente v R, above n161 and R v Beauregard [1986] 2 SCR 56. For a discussion of these cases see Sully, B, “Judicial Independence Under a Charter of Rights: Australian Snapshot – Canadian Camera” [1997] MacarthurLawRw 3; (1997) 1 Macarthur LR 1 and Friedland, M, A Place Apart: Judicial Independence and Accountability in Canada (1995) at 8–12.
[182] Above n49 at 1159.
[183] Above n13 at 593 per Lamer CJC.
[184] Id at 617 per Lamer CJC (L’Heureux-Dubé, Sopinka, Gonthier, Cory and Lacobucci JJ concurring).
[185] Lederman, W R, “The Independence of the Judiciary” in Linden, A M (ed), The Canadian Judiciary (1976) at 5.
[186] Above n13 at 627 per Lamer CJC.
[187] Id at 626–27 per Lamer CJC.
[188] Id at 634–6 per Lamer CJC.
[189] Id at 707, 709–10, 713–4 per La Forest J (dissenting in part).
[190] Id at 632 per Lamer CJC.
[191] Id at 636 per Lamer CJC.
[192] Id at 637 per Lamer CJC.
[193] Id at 638 per Lamer CJC.
[194] Id at 648 per Lamer CJC.
[195] Id at 637 per Lamer CJC. In the context of Australian judicial remuneration, Professor Winterton has recommended the creation of a similar independent tribunal, above n167 at 81– 84.
[196] Above n13 at 636–638 per Lamer CJC.
[197] Above n13 at 646 per Lamer CJC. For a different view see Elms, E, “The Reduction in Judicial Salaries in England in 1931” (1992) 1 Journal of Judicial Administration 194 at 207.
[198] Note, however that it has been argued that the reduction of judicial salaries does not necessarily affect judicial independence: Elms, above n197 at 207.
[199] Kirby, above n165 at 188.
[200] Above n5 at 595 per Dawson J; at 611 per Gaudron J; at 617 per McHugh J.
[201] [1991] HCA 9; (1991) 172 CLR 84 at 159–60. See also Gibbs CJ in Commonwealth v Hospital Contribution Fund, above n31 at 57 where he observed that the independence of State courts was not guaranteed because “a court composed of laymen, with no security of tenure, might effectively be invested with jurisdiction under s 77(iii).”
[202] For a discussion of the problems of constitutional law entrenchment see Foley, above n173; Waugh, above n42. For a comparative perspective on constitutional entrenchment see Brookfield, F M, “Parliamentary Supremacy and Constitutional Entrenchment: A Jurisprudential Approach” [1984] OtaLawRw 7; (1984) 5 Otago LR 603.
[203] In accordance with s128.
[204] Above n13 at 634–5 per Lamer CJC.
[205] Previously titled the British North America Act 1867, 30 and 31 Victoria, c 3 (UK).
[206] Friedland, above n181 at 234.
[207] Hogg, P W, Constitutional Law of Canada (1992) at 163. This has been described by Lederman as a “unitary” judicial system, above n185 at 6–7.
[208] Commonwealth Constitution, s73.
[209] For a discussion of the proposition that the Canadian Constitution embraces unwritten as well as written rules see Harvey v New Brunswick (Attorney General) [1996] 2 SCR 876 at 883–884 per Lamer CJ.
[210] McGinty, above n4 at 295 per Brennan CJ; at 305–306 per Dawson J. For academic discussion of this judicial methodology see Carne, G, “Representing Democracy or Reinforcing Inequality?: Electoral Distribution and McGinty v Western Australia” (1997) 25 Fed LR 351 at 359.
[211] McGinty, above n4 at 295 per Brennan CJ.
[212] Note, however, that in Kable, McHugh J argued that the independence of the judiciary was a general principle underlying Chapter III of the Commonwealth Constitution, above n5 at 622.
[213] For example, Chapter III of the Commonwealth Constitution does not provide for the tenure and remuneration of State court judges, although s72 provides for the tenure and remuneration of federal court judges.
[214] For a different view see above n9 at 415.
[215] Commonwealth Constitution, s77(iii); R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[216] Note, however, that the Commonwealth Parliament could enact legislation prescribing the procedure and practice to be observed by a State court exercising federal jurisdiction; Laurance v Katter, above n116 at 458 per Fitzgerald P; Above n5 at 595 per Dawson J; Russell v Russell, above n31 at 518–519 per Gibbs J; at 555 per Jacobs J.
[217] Above n13.