Chapter III Court
Encyclopedia
In Australian constitutional law
, Chapter Three Courts or 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. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution
.
refers to a system of government whereby three aspects of government power: legislative power, executive power
, and judicial power 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
. Chapter I outlines legislative power - the making, repealing, or altering of laws; Chapter II outlines executive power - the general and detailed carrying on of governmental functions; Chapter III outlines judicial power - the interpretation of law, and adjudication
according to law.
.
These features serve two purposes: first, they prescribe the features of any court created by the federal government
; and second, 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
. Under Section 72 of the Constitution
, 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
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
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 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.
. Instead, it must be determined by reference to seven indicia, viz:
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
could not exercise judicial power despite the words of the Constitution
, 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:
held that a court that discharges both arbitration
and judicial powers was invalid. The majority justices held that the maintenance of the constitutional system of government required a rigid adherence to separation of powers
.
The only exception to this rule is the discharge of functions ancillary to the exercise of judicial power. Section 51 (xxxix) of the Constitution
allows the Parliament
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 (1974), 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
".
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....
, Chapter Three Courts or Chapter III Courts are courts of law
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
which are a part of the Australian federal judiciary
Judiciary of Australia
The judiciary in Australia is modelled substantially on the system of courts which existed in England.The large number of courts and tribunals in Australia have different procedural powers and characteristics, different jurisdictional limits, different remedial powers and different cost...
, and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
.
Separation of powers in Australia
The doctrine of separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
refers to a system of government whereby three aspects of government power: legislative power, executive power
Executive Power
Executive Power is Vince Flynn's fifth novel, and the fourth to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counter terrorism unit called the "Orion Team."-Plot summary:...
, and judicial power 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
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. Chapter I outlines legislative power - the making, repealing, or altering of laws; Chapter II outlines executive power - the general and detailed carrying on of governmental functions; Chapter III outlines judicial power - the interpretation of law, and adjudication
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 parties involved....
according to law.
What constitutes a Chapter III Court
Federal courts must have those features contained in Chapter III of the Constitution of AustraliaConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
.
These features serve two purposes: first, they prescribe the features of any court created by the federal government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
; and second, 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
Security of tenure is a term used in political science to describe a constitutional or legal guarantee that an office-holder cannot be removed from office except in exceptional and specified circumstances....
. Under Section 72 of the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, 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
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
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
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
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 close to arising was during the tenure of Justice Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
of the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. However, he died in 1986 before procedures to remove him could begin.
What constitutes judicial power
Judicial power is not defined in the Australian ConstitutionConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. 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 ConstitutionConstitution of AustraliaThe Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
- nature of the body on which power is conferred
Chapter III Courts as sole wielder of judicial power
The judicial power of the Commonwealth can only be exercised by a Chapter III Court. In New South Wales v Commonwealth (1915) (The Wheat Case), the High CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
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
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...
could not exercise judicial power despite the words of the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, 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 ParliamentContempt of ParliamentIn some countries, 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 or her duties. The offence is known by various other names in jurisdictions in which the legislature is not called...
- courts-martial
- 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 CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
held that a court that discharges both arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
and judicial powers was invalid. The majority justices held that the maintenance of the constitutional system of government required a rigid adherence to separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
.
The only exception to this rule is the discharge of functions ancillary to the exercise of judicial power. Section 51 (xxxix) of the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
allows the Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
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 (1974), powers such as reorganising unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
and invalidating union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
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
Persona designata
The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the...
".
List of Chapter III courts
- High Court of AustraliaHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
- Federal Court of AustraliaFederal Court of AustraliaThe Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
- Family Court of AustraliaFamily Court of AustraliaThe Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
- Federal Magistrates' Court of AustraliaFederal Magistrates' Court of AustraliaThe Federal Magistrates Court is an Australian court established by the Federal Magistrates Act 1999 , although its first officers were not appointed until 2000...
See also
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
- Australian court hierarchyAustralian court hierarchyThere are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
- Judiciary of AustraliaJudiciary of AustraliaThe judiciary in Australia is modelled substantially on the system of courts which existed in England.The large number of courts and tribunals in Australia have different procedural powers and characteristics, different jurisdictional limits, different remedial powers and different cost...
- Constitution of AustraliaConstitution of AustraliaThe Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
- Article I and Article III tribunalsArticle I and Article III tribunalsIn the United States, the American legal system includes both state courts and United States federal courts. The federal tribunals may be an Article III tribunal or another adjudicative body classified as an Article I or an Article IV tribunal...
--analogous feature of the U.S. federal court systemUnited States federal courtsThe United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...