Australian constitutional law Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed. Background Constitution ...

, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth

judicial power The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

. They are so named because the prescribed features of these courts are contained in Chapter III of the

Australian Constitution The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the A ...

Separation of powers in Australia

The doctrine of

separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typi ...

refers to a

system of government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...

whereby three aspects of government power

legislative power A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known a ...

executive power The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems b ...

, and

are vested in separate institutions. This doctrine holds that abuse of power can be avoided by each arm of government acting as a check on another. In Australia, this separation is implied in the structure of the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...

. Chapter I outlines legislative powerthe making, altering or repealing of laws; Chapter II outlines executive powerthe general and detailed carrying on of governmental functions; Chapter III outlines judicial powerthe interpretation of law, and

adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the p ...

according to law.

What constitutes a Chapter III Court

Federal courts must have those features contained in Chapter III of the

Constitution of Australia The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the A ...

. These features serve two purposes: firstly, they prescribe the features of any court created by the

federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government ( federalism). In a federation, the self-gover ...

; and secondly, they serve as criteria when deciding whether a body qualifies as a Chapter III Court. The main feature of a Chapter III Court is

security of tenure Security of tenure is a term used in political science to describe a constitutional or legal guarantee that a political office-holder cannot be removed from office except in exceptional and specified circumstances. Without security of tenure, an ...

. Under Section 72 of the

, justices of federal courts are to be appointed by the Governor-General in Council; have a term of office lasting until they are 70 years of age (unless

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...

legislates to reduce this maximum age before their appointment); and receive a remuneration which must not diminish during their term in office. Chapter III judges cannot be removed except upon an address from both houses of the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor- ...

in the same session, "praying for such removal on the ground of proved misbehaviour or incapacity". Thus, a judge cannot be removed except in the most extraordinary of circumstances. The only instance where the situation has even been close to arising was during the tenure of Justice Murphy of the High Court. However, he died in 1986 before procedures to remove him could begin.

What constitutes judicial power

Judicial power is not defined in the

. Instead, it must be determined by reference to seven indicia, viz: # binding and conclusive decisions # enforceability # decisions made about existing rights or duties # discretion limited to situations with legally ascertainable tests # need for a controversy # opinion of the drafters of the

# nature of the body on which power is conferred

Chapter III Courts as principal repositories of Commonwealth judicial power

The judicial power of the Commonwealth can be exercised only by a Chapter III Court or by a state court in which Commonwealth judicial power has been vested under s 77(iii) of the Constitution (although the reverse is not possible). In New South Wales v Commonwealth (1915) (''The Wheat Case''), the High Court held that judicial power is vested in a court as described under Chapter III, and no other body can exercise judicial power. In that case, it was held that the

Inter-State Commission The Inter-State Commission, or Interstate Commission, is a defunct constitutional body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade. The ...

could not exercise judicial power despite the words of the

, because it appeared in Chapter IV of the Constitution, and not Chapter III. More importantly, the Commission was set up by the executive and violated the conditions for being a Chapter III court. There are some exceptions to the rule. Firstly, judicial power may be given to a non-judicial agent provided the judges still bear the major responsibility for exercise of the power and the exercise of power is subject to court review. Secondly, there are four discrete exceptions: #

contempt of Parliament In countries with a parliamentary system of government, contempt of Parliament is the offence of obstructing the legislature in the carrying out of its functions, or of hindering any legislator in the performance of his duties. Typology The conce ...

courts-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...

# public service tribunals # detention #* of non-citizens #* of the mentally ill or those with infectious diseases #* by police for a limited period of time #* for the welfare/protection of a person

Chapter III Courts wielding non-judicial power

A Chapter III Court cannot discharge powers other than judicial power, except where the function is ancillary to the purpose of the judicial function. In '' The Boilermakers' Case'', the High Court held that a court that discharges both

arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ...

and

s was invalid. The majority

justices A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

held that the maintenance of the constitutional

required a rigid adherence to

. The only exception to this rule is the discharge of functions ancillary to the exercise of judicial power. Section 51 (xxxix) of the

allows the

to vest in Chapter III courts any power incidental to its exercise of judicial power. This exception has in subsequent cases been used to allow courts to be vested with wide-ranging powers. Thus, in R v Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation, powers such as reorganising unions and invalidating union rules were allowed to be exercised by a Chapter III court. However, the exclusion of non-judicial power from a Chapter III court does not preclude individual justices from performing non-judicial functions, provided that they do so in their personal capacity; that is, they act as "'' persona designata''".

Appeals to the Privy Council

The issue of appeals from the High Court to the United Kingdom's

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...

was a significant one during the drafting of the Constitution and it continued to be significant in the years after the court's creation. The wording of section 74 of the constitution that was put to voters in the various colonies was that there was to be no appeal to the Privy Council in any matter involving the interpretation of the Constitution or of the Constitution of a State, unless it involved the interests of some other dominion. However, the British insisted on a compromise. Section 74 as ultimately enacted by the Imperial Parliament was as follows:

No appeal shall be permitted to the Queen in Council ~~in any matter involving the interpretation of this Constitution or of the Constitution of a State~~ from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless ~~the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.~~ the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. ~~But~~ The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.

Section 74 did provide that the parliament could make laws to prevent appeals to the Privy Council and it did so, beginning in 1968, with the ''Privy Council (Limitation of Appeals) Act 1968'', which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the ''Privy Council (Appeals from the High Court) Act 1975'' was passed, which had the effect of closing all routes of appeal from the High Court. Appeals from the High Court to the Privy Council are now only theoretically possible in '' inter se'' matters if the High Court grants a certificate of appeal under section 74 of the Constitution. In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete". In 1986, with the passing of the Australia Act by both the

UK Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...

and the Parliament of Australia (with the request and consent of the Australian states, in accordance with Section 51(xxxviii)),''Australia Act'' 1986 (Cth)
/ref> appeals to the Privy Council from State Supreme Courts were closed off, leaving the High Court as the only avenue of appeal.

List of Chapter III courts

High Court of Australia The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...

Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...

Family Court of Australia The Family Court of Australia was a superior Australian federal court of record which deals with family law matters, such as divorce applications, parenting disputes, and the division of property when a couple separate. Together with the Fed ...

Federal Circuit Court of Australia The Federal Circuit Court of Australia, formerly known as the Federal Magistrates Court of Australia or the Federal Magistrates Service, was an Australian court with jurisdiction over matters broadly relating to family law and child support, ad ...

References

External links

Australian Courts & Legislation
{{DEFAULTSORT:Chapter Iii Court Australian constitutional law