Separation of Powers and Judicial Power within the States

Separation of Powers and Judicial Power in the States

For most of the past century, it was assumed that the constitutional doctrine of separation of judicial power did not apply to the states' power over state courts. This assumption was based on the fact that the Commonwealth Constitution does not explicitly mention the judicial power of the states (vested by the state parliament), except as potential vessels for federal jurisdiction. It was therefore believed that the Constitution imposed no limitations on the type of power that could be conferred upon state courts by state parliaments.

kable v. Director of Public Prosecutions

This view changed in 1996 with the landmark case of Cable v. Director of Public Prosecutions. The High Court asserted that Chapter Three of the Constitution does indeed constrain state parliaments.

Facts of the Case

The case concerned the validity of the Community Protection Act 1994. Sections Five and Three of the Act were challenged. Section Five authorized the Supreme Court of New South Wales to order the detention of a person for up to six months if it was satisfied on reasonable grounds that:

1. The person was likely to commit a serious act of violence.

2. It was appropriate for the protection of a particular person or the community that the person be held in custody.

These orders were renewable. Section Three limited the application of the act to Gregory Wayne Cable, who had been convicted of the manslaughter of his wife in 1990 and sentenced to five years imprisonment. During his imprisonment, Cable sent threatening letters to the wife's family, who feared for their safety upon his release. The public perceived Cable's impending release as excessively lenient, creating a political uproar during a state election dominated by law-and-order issues. The government responded by enacting the Community Protection Act.

Under this act, Cable was detained for a further six months after his sentence, upon the order of Judge Levine of the Supreme Court of New South Wales. Cable's counsel argued that the act was invalid.

High Court's Decision

The High Court, divided four to two, held that the act was invalid. Justice Maheux's judgment construed a limitation on the separation of powers for courts vested with federal jurisdiction under Chapter Three of the Constitution. State courts are part of an integrated system under the Constitution, giving them a role that extends beyond their status within state judicial systems. They are also organs for the exercise of federal judicial power.

Justice Maheux stated that the Constitution makes no distinction between the status of state courts vested with federal jurisdiction and those created as federal courts. These courts must be independent of the legislature and executive. While the Commonwealth doctrine of separation of powers may not directly apply to the states, the effect of Chapter Three of the Constitution can lead to the same result. No government can undermine public confidence in the impartial administration of the judicial functions of a state court.

The majority found that the Cable Act undermined public confidence in the state Supreme Court. It was impermissible to give the court power over a specific person without a finding of criminal guilt, but rather based on an assessment of what that individual might do in the future. All of the majority judges were concerned about the ad hominem nature of the statute, which was aimed at one named person, violating the principle of the generality of law.

The minority, Chief Justice Brennan and Judge Dawson, asserted that no doctrine of separation of powers bound the state legislature.

The Cable Principle

State legislatures cannot confer powers on state courts that would undermine or be seen to undermine their independence from the political branches of government if those courts are vested with federal jurisdiction.

Evolution after Cable

K Generation v. Licensees Court (2009)

A majority confirmed that the Cable principle extended to all state courts capable of exercising federal jurisdiction, not only the state Supreme Court.

Public Confidence

Various judges in Cable emphasized that public confidence in the judiciary must be maintained. However, Justice Keary, in Fardon v. Attorney General (2004), claimed that public confidence isn't the same as public popularity and should not be confused with a lack of public awareness about the separation of powers.

Fardon v. Attorney General (2004)

Justice Maheux clarified the Cable principle, stating that the doctrine of the separation of powers (derived from Chapters One, Two, and Three of the Constitution) does not apply as such to any of the states. Chapter Three provides for the exercise of federal judicial power and invalidates state legislation that purports to invest jurisdiction and powers in the state courts only in very limited circumstances. These circumstances include:

1. State legislation that attempts to alter or interfere with the working of the federal judicial system set up by Chapter Three.

2. Legislation whose aim is to confer jurisdiction in state court but compromises the institutional integrity of state courts and affects their capacity to exercise federal jurisdiction invested under Chapter Three impartially and competently. This is a key concept.

Institutional Integrity

Justice Matthews' formulation of the Cable principle shifts from a test involving notions of public confidence to a test focused on the institutional integrity of the courts. The Cable test, as reformulated in Fardon, prohibited the investiture in the state courts of powers that undermine their institutional integrity as a vessel for federal jurisdiction. Public confidence refers to the idea that the investiture of the relevant powers in a court will undermine public confidence in the true independence of those courts from the other arms of government, which is a crucial aspect of its institutional integrity.

Constitutional Validity

The issue in this case was the constitutional validity of section 13 of the Dangerous Prisoners Sexual Offenders Act 2003 of Queensland. Section 13 authorized the Supreme Court to keep a person in prison after the expiry of her or his sentence if it was satisfied that the person would be likely to commit a serious sexual offense upon release.

A majority of six to one found that the law was valid. The court distinguished Fardon from Cable:

According to the High Court, there was no issue concerning the separation of powers. In his dissenting opinion, Justice Kirby thought that section 13 was invalid under the Cable principle.

Five features of the legislation that render the powers conferred upon the Supreme Court are, according to Justice Kirby, repugnant to Chapter Three:

1. The civil commitment of a person to a prison for convicted criminals.

2. The detention in prison on the basis of potential future offenses rather than criminal conduct.

3. The nonconformity with the principles governing the analogous detention of the mentally ill.

4. The imposition of racial punishment on a limited class of prisoners elected by the legislature.

5. The double jeopardy or double punishment for the original Criminal Act, which form part of the basis for the preventive detention order, even though a judicially imposed sentence for that crime has been served.

International Finance Trust Company v. New South Wales Crime Commission (2009)

The issue was the validity of Section 10 of the Criminal Assets Recovery Act 1990 of New South Wales. Section 10 provided for orders restraining the use or disposal of property by persons suspected of serious crimes. Section 10.2 provided that the New South Wales Crime Commission could apply for such orders ex parte. Section 10.3 provided that the Supreme Court of New South Wales had to hear such a section 10.2 application ex parte and had to grant the order so long as certain conditions present were satisfied certain conditions preceding were satisfied.

The majority of the court found that section 10 was invalid. The Supreme Court's lack of discretion in hearing and determining the application parte is incompatible with the judicial function of that court. Directing the court as to the manner of the exercise of its jurisdiction distorts the institutional integrity of the court and affects its capacity as a repository of jurisdiction.Section two, engages the Supreme Court in activity, which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

The minority of Justices Hayne, Crennan, and Kiefel found Section 10 to be valid because the act did not preclude the swift application by the affected person that the order be set aside.

In this case, the Cable test seemed to move from the Fardon test of institutional integrity to a newly awarded test of repugnance to the judicial process in a fundamental degree. In later cases, however, the wording has moved back to that of institutional integrity.

South Australia v. Totany (2010)

The issue was the validity of Section 14(1) of the Serious and Organized Crime Control Act of 2008 of South Australia. Section 10 provided that the Attorney General of South Australia had the power to declare that an organization's members were involved in serious criminal activity and posed a risk to public safety. Section 14(1) obliged the magistrates court to make a control order in respect of a member of a declared organization upon application of the commissioner of police. Control orders were not contingent upon findings of guilt, and the court had no discretion whether to make an order or not.

A majority of six judges found that section 14 was invalid. Section fourteen one supplements the exercise by the attorney general of the politically accountable function compared by part two with respect to the declaration of organizations. But that supplementation involved the conscriptions of the magistrate's court to effectuate that political function. This is achieved by obliging the Magistrates Court to act upon the declaration by the executive by making a control order in respect of the defendant selected by the commissioner, subject only to the satisfaction of the magistrate score that the defendant is a member of the declared organization.

Therefore, section fourteen one of the Act enlists a court of a state in the implementation of the legislative policies stated in section four by an adjudicative process in which the magistrate court is called upon effectively to act at the behest of the attorney general to an impermissible degree and thereby to act in a fashion incompatible with the proper discharge of its federal judicial responsibility and with its institutional integrity. This was deemed a violation of the Cable principle.

Condom v. Pompano (2013)

Validity of section 10 of the Criminal Organization Act 2009 of Queensland. According to a challenge, chapter three of the constitution puts beyond the legislative power of a state any enactment that would permit the state supreme court to decide a disputable issue by reference to evidence of information of which one party does not know in the act with certain information characterized as criminal intelligence. So in this case, the accused did not know that information before the state Supreme Court had to make a decision.

The court confirmed the validity of the impugning provisions, noting the existence of analogous situations regarding public interest, immunity claims, and trade secret cases where open justice is not fully adhered to due to overriding countervailing interest. The court nevertheless retained its decisional independence and the powers necessary to mitigate the extent of the unfairness. Then this discretion was not removed from the court by this act.

Why no Vinusa Wells (2011) and Persona Designata

The case considered the constitutionality of nonjudicial powers conferred on designated serving judges. The judge could make declarations on the basis of a wide range of considerations, including access to secret criminal intelligence, if he or she was satisfied that the organization's members associate for the purposes of pursuing serious criminal activity or that the organization pose a threat to public safety The judge was not required to provide reasons for the making of a declaration and was not bound by the rules of evidence in doing so.

An almost per curiam court found the scheme to be invalid. The majority decision indicates that the principle governing the conferral of the non-judicial powers on state judges are in fact similar to those governing person at the signet appointments at the federal level. a state legislature cannot enact a law conferring upon just one judge over the state court a nonjudicial function is substantially incompatible with the functions of the court of which the judge is a member.

Application of the Cable Principle

The Cable principle does not place any limit to the ability of the state parliaments to vest nonjudicial powers with judicial power. There is nothing in the constitution that would preclude the states from legislating so as to empower nonjudicial tribunals to determine issues of criminal guilt or to sentence offenders for breaches of the law. The high court has so far found only one constitutional constraint upon the ability of states to vest judicial power in nonjudicial body; They may not do so with regard to the matters listed in sections seventy five and seventy six of the constitution

Burns v Corbett (2018)

Adjudicative authority in respect of the matters listed in sections seventy five and seventy six of the constitution may be exercised only as subjectry contemplates and not otherwise.

Summary of Conclusions

• States can prima facie vest the state courts and judges with nonjudicial powers.

• States cannot vest those courts and judges with powers that undermine the institutional integrity of those courts if those courts are capable of being vested with fair jurisdiction under Chapter Three.

• States can, in fact, confer nonjudicial powers on state courts, and the Commonwealth cannot unless an exception applies.

• The High Court has so far found only one constitutional constraint upon the ability of states to vest judicial power in nonjudicial bodies: They may not do so with regard to the matters listed in Sections 75 and 76 of the Constitution.