Chapter III Court 3726271 203653253 2008-04-06T02:11:36Z Eastlaw 1046972 /* See also */ bypass redirect In [[Australian constitutional law]], '''Chapter Three Courts''' or '''Chapter III Courts''' are [[court|courts of law]] which are a part of the [[Judiciary of Australia|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 [[Constitution of Australia|Australian Constitution]]. ==Separation of powers in Australia== {{Main|Separation of powers in Australia}} The doctrine of [[separation of powers]] 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 [[checks and balances|check]] on another. In Australia, this separation is implied in the structure of the [[Constitution of Australia|Constitution]].<ref >[[Wilson v Minister for Aboriginal Affairs]] (1996)</ref> 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. ==What constitutes a Chapter III Court== Federal courts must have those features contained in Chapter III of the [[Constitution of Australia]]. These features serve two purposes: first, they prescribe the features of any court created by the [[government of Australia|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 of Australia|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 of Australia|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 Parliament]] 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 [[Lionel Murphy|Justice Murphy]] of the [[High Court of Australia|High Court]]. However, he died in [[1986]] before procedures to remove him could begin. ==What constitutes judicial power== {{Expand-section|date=January 2007}} Judicial power is not defined in the [[Constitution of Australia|Australian Constitution]]. Instead, it must be determined by reference to seven indicia,<ref>[[Huddart, Parker & Co Pty Ltd v Moorehead]] (1909)</ref> 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 [[Constitution of Australia|Constitution]] # 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<ref>[[Re Wakim; Ex parte McNally]] (1999)</ref>. In [[New South Wales v Commonwealth (1915)|New South Wales v Commonwealth]] (1915) (''The Wheat Case''), the [[High Court of Australia|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]] could not exercise judicial power despite the words of the [[Constitution of Australia|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.<ref>[[Harris v Caladine]] (1991)</ref>. {{Expand-section|date=January 2007}} Secondly, there are four discrete exceptions: # [[contempt of Parliament]] # [[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'',<ref>[[R v Kirby; Ex parte Boilermakers' Society of Australia]] (1956)</ref> the [[High Court of Australia|High Court]] held that a court that discharges both [[arbitration]] and [[judicial power]]s was invalid. The majority [[List of Judges of the High Court of Australia|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 of Australia|Constitution]] allows the [[Parliament of Australia|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 [[trade union|unions]] and invalidating [[trade union|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]]''". <ref>[[Hilton v Wells]] (1985)</ref> ==List of Chapter III courts== * [[High Court of Australia]] * [[Federal Court of Australia]] * [[Family Court of Australia]] * [[Federal Magistrates' Court of Australia]] ==See also== * [[Separation of powers]] * [[Australian court hierarchy]] * [[Judiciary of Australia]] * [[Constitution of Australia]] * [[Article I and Article III tribunals]]--analogous feature of the [[United States federal courts|U.S. federal court system]] ==Notes== <references/> ==External links== * [http://www.nla.gov.au/oz/gov/leg.html#crtcom Australian Courts & Legislation] [[Category:Australian constitutional law]] [[Category:Politics of Australia]]