Chapter Iii Court

SEPARATION OF POWERS IN AUSTRALIA

''Main article Separation Of Powers In Australia ''

The doctrine of , 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.

FEATURES OF A CHAPTER III COURT

These features, contained in chapter III of the ; 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); and 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 Justice Murphy of the High Court . However, he died in 1986 before procedures to remove him could begin.

CHAPTER III COURTS AS SOLE WIELDER OF JUDICIAL POWER

Judicial power can only be exercised by a Chapter III Court. 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 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.

CHAPTER III COURTS WIELDING NON-JUDICIAL POWER

Judicial power can only be exercised by a Chapter III Court. Conversely, a Chapter III Court cannot discharge powers other than judicial power, except where the funtion is ancillary to the purpose of the judicial function. In ''The Boilermakers' Case'' ( R V Kirby; Ex Parte Boilermakers' Society Of Australia (1956)), the High Court held that a court that discharges both Arbitration and Judicial Power s 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 , powers such as reorganising Unions and invalidating Union rules were allowed to be exercised by a Chapter III court.

LIST OF CHAPTER III COURTS

''Main article Australian Court Hierarchy ''

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