Federal Tribunals in Australia - Assignment Example

Question 1)‘Separation of Powers’ doctrine and how it operates in Australia; 2) judicial power as outlined in the Commonwealth Constitution; 3) the role of tribunals at state and federal levels. Separation of Powers’ doctrine and how it operates in Australia Brandy v HREOC(1995)1 basically challenged power of Human Rights and Equal Opportunity Commission (HREOC), a Federal Tribunal, to pass orders of determination, on the ground that federal tribunal as an arm of the Government had no judicial power and sought to declare the relevant sections 25ZAA, 25ZAB, and 25ZAC of the Racial Discrimination Act 1975 as unconstitutional (Cth) i.e being inconsistent with Chapter III of the Federal Constitution. Section 25AA mandates the HREOC to lodge its determination in the Federal Court’s Registry, 25ZAB deems the determination as an order passed by the Federal Court and provides for review by an application within 28 days, and 25ZAC empowers the Federal Court to pass such orders as it may think fit.2 The High Court responded to the plea by holding that registration requirements of HREOC was indeed unconstitutional since it was tantamount to vesting judicial power with the commission. As a result, parliament brought an amendment Act in the name of Human Rights Legislation Amendment Act 1995 (Cth) by repealing above provisions of Racial Discrimination Act (RDA) along with Sex Discrimination Act (SDA) and Disability Discrimination Act.(DDA). However new arrangement still contemplates hearings before the Commission and determination by it but the determination can not be enforced. The Federal Court will have to make a ‘de novo’ hearing and pass such orders as it thinks fit on being approached for enforcement of the determination. This new system forces a complainant to litigate the matter twice for obtaining an enforceable remedy. Subsequently, The Human Rights Legislation Amendment Act (No1) 1999 repealed the provisions of RDA, SDA, and DDA concerning complaints and HREOC Act was suitably amended. The complaints therefore can now be preferred before the Federal Court or Federal Magistrate Court in case of no conciliation possible before the HREOC for investigation.3 A brief overview of administrative law in Australia will be relevant at this stage before going into the concept of separation of powers. A decision making body must only consider relevant issues and ignore irrelevant ones and in many enactments, respective matters of relevance are already spelt out. Acts usually designate a person to decide matters and he does not have discretion to go beyond the rules and policies. The affected party should have had procedural fairness called natural justice. The aggrieved party can seek review of the decision made by a federal Government body, by means of internal review, external review and judicial review. The decision making agency must also inform the aggrieved party about his rights of reviews and time limits for seeking them. Internal review, as an informal system , is done within the decision making agency by a person superior to the maker of the decision appealed against. External review is a formal system that facilitates review by a superior agency to the agency whose decision is sought to be reviewed. Those providing external review in Australia are the Administrative Appeals Tribunal, the Migration Review Tribunal, the Refugee Review Tribunal, the Social Security Appeals Tribunal, and the Veterans Review Board. Judicial Review is done by the High Court by exercising its relevant jurisdiction under section 39 B of the Judiciary Act 1903, for redressal of all unlawful decisions of the Federal Government officers. In the system of administrative law, accountability by the Government of the Commonwealth is thus sought to be achieved by entitling the aggrieved person to ascertain reasons for the decision and also to have access to documents leading to the decision besides having the decision reviewed by another independent tribunal, Ombudsman or by the courts.4 Doctrine of Separation of Powers Separation of powers is necessary in a democratic set up in order to have checks and balances by the different wings of the commonwealth over one another. Thus a constitutional set up should provide for control of judiciary over the executive and legislative. In the instant case, the issue was the blurring of boundaries in the separation of powers among the executive and the judiciary. The power of the judiciary was literally being usurped by the executive with legislative sanction. The plaintiff in the case cited Re Ranger Uranium Mines Pty Ltd5.wherein it is said that determination exercise itself would amount to exercise of judicial power. Court observed that it depended on the purpose for which inquiry and determination were resorted to. Hence if the they were intended for determining the legal rights and obligations, then they assumed judicial character. But at the time it was pointed out that mere formation of opinions determining the legal rights and obligation could not be termed as an exercise of judicial power as mentioned in Re Cram6 and that opinion can not be binding on parties involved. The court has categorically stated that a court appointed under ss 71 and 72 of the Common wealth constitution alone has the power to ascertain existing legal rights by examining issues of fact or law though it can not be assumed as an exercise of judicial power by the executive or legislature if it amounts to mere intention to guide future conduct of parties, which will be just an opinion not binding on them. It relied upon Re V Davison 7, where in Dixon CJ and McTierman J have sated that the legislation by the parliament can not delegate the judicial function of determination of existing rights and obligation of parties based on issues of fact or law to any agency other than the High court.. The Judges in the instant case have therefore said that judicial determination is the one that is made with authority by applying law and facts known as judicial method. In Federal Commissioner of Taxation v Munro8, it has been observed that punishment of criminal offences and trials for civil issues and wrongs are the prerogative of the judiciary. What has actually happened to the plaintiffs in the instant case is the punishment meted out by a tribunal an arm of the executive and not the judiciary, as can be observed from the wordings of the relative determination of the HREOC. On 22 December 1993, the second defendant handed down a determination pursuant to s 25Z of the Act, in which he found the complaint substantiated, and declared that the following acts or course of conduct should be performed: (1) that the plaintiff do apologise to the third defendant, the form of the apology being annexed to the determination; (2) that the plaintiff do pay the sum of $2,500 to the third defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the third defendant; (3) that ATSIC do take disciplinary action against the plaintiff, in relation to the conduct which he perpetrated against the third defendant; (4) that ATSIC do apologise to the third defendant in relation to the handling of his complaint, the form of the apology being annexed to the determination; (5) that ATSIC do pay the sum of $10,000 to the third defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the third defendant 9 One can easily gauge the gravity of the above determinations if implemented without judicial sanction. This is what highlights the importance and explains the need for separation of powers enshrined in the constitution. The issue is that judicial power can not be exercised by a non-judicial officer but a judicial power can be delegated to a judicial officer by the Commonwealth court. Thus the High Court ruled in Harris v Caladine10 that Commonwealth judicial power exercised by the Family Court of Australia was validly delegated to its Registrar on the premise that judges would have to assume responsibly to exercise judicial power. However a non-judicial officer’s decision must be subject to appeal or review to be determined by a judge.11 In the words Omar, In Brandy, the High Court found this legislative scheme invalid because of how the Court construed the constitutional requirement of the separation of judicial power. Of course, this separation is directed to the protection of individual liberty. However, insistence on a rigid notion of separation may work to the detriment of the operation of procedural guarantees of rights. This appears to have been the consequence in Brandy.12 It seems even technical flaws also can not be tolerated in the matters of separation of powers which Omar differs with as follows. The High Court has been prepared to take recourse to principles and standards based on political, social and moral considerations. In Leeth and Dietrich, for example, an implied individual right to equality and an implied individual right to a fair trial respectively were upheld. In the Australian Capital Television case, on the other hand, the immediate beneficiaries of the implied right to freedom of communication were private television broadcasting companies. Judged in this context, the High Court invalidation, in Brandy, of the enforcement mechanism, of an individual's procedural right to non-discrimination, by a formalist style of inquiry, devoid of social and political considerations, is disconcerting.13 It seems the High Court has been right in elimination of such overlapping so that boundaries between the powers are not blurred as rightly stated by Goodheart, A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.14 Judicial Power as outlined in the Commonwealth Constitution Chapter III of the Commonwealth Constitution separates judicial power from executive and legislative power and determines the nature of judicial power and independence in order to protect individual liberties without the possible tyranny of executive and legislature. By virtue of entrenching the judicial power, the constitution of the common wealth guarantees individual liberties beyond the arbitrary exercise of power by the executive and legislature.15. Although Chapter III of the constitution claims to give inherent jurisdiction for Federal Courts and courts exercising Federal jurisdiction, the fact has not been fully explored. The Chapter has 10 sections providing for constitution of federal courts. The judicial power of the Commonwealth has been vested in a federal supreme court now called as High Court of Australia. Parliament may create more federal supreme courts to be vested with federal judicial power. The High Court of Australia is headed by a Chief Justice, along with a minimum of two other judges. Although the it is difficult to define the judicial power of commonwealth 16, it means to carrying out of traditional functions such as adjudication and settlement of disputes in accordance with law.17 However Griffith C.J.’s oft-cited definition stated in Huddart, Parker & Co Pty Ltd v Moorhead will be worthwhile. It is the power that every sovereign authority must possess to decide on disputes between the subjects, between the sovereign authority itself and the subjects, relating to life, liberty and property. The power however is not invoked unless decision of some tribunal vested with power of giving a binding decision whether can be appealed against or not, is questioned.18 Decision in respect of Boilermaker’s case19 though controversial was what determined to protect the independence of federal judges who have to decide on the legality of actions of political wings so as to be freed of being influenced by them in Government policy making and other non-judicial matters. This is known as first principle as stated by Winterton. Marson has classified the powers of the judicial power into four functions.20 1) In order to ensure convenience and fairness in legal proceedings, the court has the power to formulate rules of court and practice directions, the power of remedying natural justice violations by setting aside exparte orders, power of correcting, varying, or extending an order that denies justice, power to hold in camera hearings, prohibiting publication of part of the proceedings, power of declining if proceedings are not properly carried out, power of dismissing an action in the absence of prosecution including cases of delays in which the defendant will suffer because of the delay, power of compelling to submit to court’s process, ensuring obedience and compliance of orders, power of punishing for contempt of court and interference in administration of justice, and the power having the right to verify documents denied to one of the parties. 2) Prevention of steps that may be taken to render judicial ineffective by ordering security for costs, staying the execution of judgement, and granting remedies like Anton Piller Orders and Mareva Injunctions. 3) Prevention of abuse of the process by staying or dismissing frivolous, vexatious, oppressive and groundless proceedings, staying the proceedings where better forum is available or already invoked, staying the proceedings in cases where criminal charges are pending and staying the proceedings for want of prosecution. 4) To act for the support of superior courts and the control of inferior courts or tribunals. The role of tribunals at state and federal levels. Tribunals have the functions of reviewing administrative and executive decisions of the Government, issuing decisions of original in nature and resolving disputes such as in consumer trading, tenancy and like matters. Tribunal is Australia are functioning both at Commonwealth and State and Territory levels. They came into being as part of the Administrative law reforms in 1970s. Administrative Appeals Tribunal was established in 1976. Tribunals in Australia owe their existence to Sir John Kerr and Sir Anthony Mason and Professor Whitmore who were behind the 1970 reforms. Sir Anthony Mason later became the Chief of Australia.21 The Administrative Appeals Tribunal at the commonwealth (federal)level. This federal tribunal has jurisdiction over the administrative decisions made in the enforcement of nearly 400 Acts of Australian Parliament. It has got members at four levels. In the first level are Federal judges acting as judicial members. In second level, distinguished lawyers acting as Deputy Presidents. Third level has senior members who are lawyers with considerable experience. And the fourth level members are lawyers most of them having other expertise in medicines, science, army, aviation, accountancy, taxation, insurance and business, and engineering etc. The members are both in full time and part-time service. Having no internal process as such, it reviews decisions coming from original decision- makers, and decisions of the tribunals below such as Social Security and Veterans Review board. They can also issue warrants for telephone surveillance, and warrants in exercise of criminal jurisdiction. The unique feature of the common wealth tribunal is that it can not exercise the jurisdictions of the Federal Court (High Court) 22 State Tribunals Tribunals at the State levels have been modelled on the lines of Commonwealth tribunal. These tribunals have the jurisdiction over issues like consumer trading, tenancy and similar matters of dispute. The state tribunals have more powers than do the commonwealth tribunals because of the federal nature of Australian polity. Rather than separation of powers, states are guided by division of powers. While commonwealth powers are determined by the .constitution, states can themselves decide their power structures. There is no strict separation of powers enforced in the States. Thus there is no restriction on State Tribunal to exercise judicial power. As such though they are not courts, they decide disputes coming under their jurisdiction and their disputes can be enforced.23 Question 2 This question involves doctrine of precedent known also as stare decisis. This rule expects subordinate courts to follow the orders of superior courts decided on similar essential or material facts. In a way, it is an obligation on the part of the judges to follow the reasoning or ratio decidendi of the past cases by a superior court. This doctrine seeks to avoid arbitrariness and ensure certainty and consistency. But it is not as simple as that, for it is not very easy to decide which are the cases that will be precedent for others. Comments made by superior court judges can only serve as obiter dicta and need not be binding on a subordinate court. But a judge can draw support from such obiter dicta for his own conclusions. Some times even if there is a precedent, the subordinate judge, if he feels that it will not lead to give a just decision in the present case, can do so by arguing against the precedent convincingly. Again the doctrine is confined to a single legal system.24 As per the above principles, the Queensland court single judge has to decide in favour of F because, D ‘s rights are similar to that of F have been upheld by the Highest court in Australia. As Queensland court is subordinate to the Federal Supreme court (High Court) and belongs to the same legal system and is in the lower hierarchy, in spite of an earlier Queensland Appeal Court in favour in favour of A whose rights are not similar to that of F, the single judge is bound by the latest 2006 judgment and not the decision of 1990 by the same State’s Appeals court. Bibliography Chapter 1, Introduction http://www.hreoc.gov.au/legal/FDL/word/1intro.doc General information on the Australian Administrative Law System, accessed 01.11.2008 Downes Garry, the Hon. Justice, Overview of Tribunals Scene in Australia, Speech delivered to the International Tribunal Workshop, Canberra 5 April 2006 Goodhart Professor of Legal Science 2005-2006, University of Cambridge; Professor of Law, University of Melbourne, cited by Saunders Cheryl in Separation of Powers and the Judicial Branch Kerridge Lan, Lowe Michael, and McPhee John, Ethics and Law for Health Professionals, Federation Press, 2005, p 62 Lacey Wndy, Inherent Jurisdiction, Judicial Power And Implied Guarantees Under Chapter Iii Of The Constitution, accessed 2 November 2008 < http://austlii.law.uts.edu.au/au/journals/FedLRev/2003/2.html#fnB25> Omar Imtiaz, Darkness On The Edge Of Town: The High Court And Human Rights In The Brandy Case, accessed 1 November http://www.austlii.edu.au/au/journals/AJHR/1995/8.html Research Note Number 11, 2 March 1995, Parliamentary Research Service, Department of the Parliamentary Library W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1997) 322; Winterton, a 187-8; George Williams, Human Rights Under the Australian Constitution (1999) 198. 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