Federal judicial power

The idea

The separation of judicial power has one source and two operations. Federal judicial power may be vested only in a court that satisfies Chapter III. Such a court may exercise only judicial power. Both rules come from Boilermakers, and a breach of either invalidates the law.

Name the limb before you test anything. A body that is not a court but holds federal judicial power engages the first limb. A federal court or judge given a non judicial function engages the second. The question you ask next depends on which limb is in play.

A body counts as a Chapter III court only if its members hold the tenure that s 72 requires. A scheme may describe a power in perfectly judicial terms and still fail. This is because the members were appointed for a fixed term of years, and a fixed term defect sinks the scheme whatever the functions look like.

Judicial power itself has no closed definition. The starting point is Griffith CJ in Huddart Parker. Judicial power decides a controversy about existing legal rights by a binding and authoritative decision. No single feature settles the character of a power, so the rest is done across the indicia.

Where it comes from

The doctrine has one source. In Boilermakers the arbitration court held both judicial and non judicial functions, and the High Court struck it down for holding both at once. The Privy Council affirmed. To vest executive and judicial power in the same body removes a vital constitutional safeguard.

Dixon CJ drew the rule from the structure of the Constitution and from federalism. An independent court must police the boundary between the two levels of government, so it must be kept out of the political functions of either. Waterside Workers v Alexander supplies the tenure requirement. The President's seven year term was fatal because it fell short of s 72.

How it is examined

Chapter III appears in four of the seven finals, usually as a multi part scheme question worth 10 to 25 marks. The paper builds a body, gives it a power, and plants a defect you have to find. Two plants recur. The first is a tenure defect buried in the appointment provision. The 2021 paper appointed its decision makers for 24 months, and that fixed term sank the scheme whatever the powers looked like.

The second plant is enforcement by registration. A commission makes a declaration said to be non binding, and the registration provisions make it enforceable as a judgment. The 2019, 2021 and 2023 papers all planted the Brandy structure. The persona designata report is the other heavy earner, where a paper names a judge to report to a Minister and asks whether the appointment is valid. Executive detention now runs on NZYQ rather than Al-Kateb. Usurpation earns a paragraph at most.

How to argue it

Start by naming the limb. If the body is not a court and holds federal judicial power, the first limb is in play. If a federal court or judge holds a non judicial function, the second limb is in play.

Check the tenure of the body before anything else. If the members were appointed for a fixed term of years, the body is not a Chapter III court under s 72, and the scheme fails there whatever its functions. The party defending the scheme cannot save a fixed term appointment by pointing to the judicial quality of the power.

Then ask whether the power is judicial. Run the Huddart Parker definition, then weigh the Precision Data indicia. Ask whether the body applies legal criteria or policy, and whether it resolves a dispute about existing rights or creates new ones. A body looking forward on public interest grounds is usually not judicial. Where the indicia are equivocal, enforceability decides. The challenger will argue that a determination registered and enforceable as a judgment is an exercise of judicial power under Brandy, and that argument holds even where another court supplies the enforcement machinery. For a power over future conduct, the party defending it will point to Thomas v Mowbray. A standard such as would substantially assist in preventing a terrorist act is capable of strictly judicial application, so a forward looking or policy tinged criterion does not by itself sink the power.

If the power is detention, ask whether it is punitive. The challenger will argue that involuntary detention is exclusively judicial under Lim, so the party defending the detention must fit it into a recognised non punitive category such as an alien held to make removal effective. Punitive character turns on the purpose of the law rather than its effect on the detainee (Re Woolley). The decisive update is NZYQ. Once there is no real prospect of the person's removal in the reasonably foreseeable future, the detention no longer serves its removal purpose, so it is punitive and beyond the Executive. Alexander runs the same principle onto citizenship. Stripping citizenship as punishment for conduct is a judgment of guilt that belongs to the courts.

If a judge is given a non judicial task, run persona designata. Non judicial power may be given to a judge personally rather than to the court (Hilton). The exception holds only where the judge consents and the function is not incompatible with judicial office (Grollo). Compatibility is judged by the Wilson factors, weighing whether the function is closely connected with the Executive, whether it must be performed independently of ministerial instruction, whether it involves political discretion, and whether it must be performed judicially. The stronger view is that a report is incompatible where it is an integral part of the Minister's decision rather than an independent review, where the judge need not disregard ministerial instruction, and where the task calls for a political rather than judicial function.

Two closing points fix the smaller grounds. Parliament usurps judicial power only where a law is in substance a plan to convict named individuals (Liyanage). A mere change to the rules of evidence does not usurp (Nicholas). A federal court can never take State judicial power, and no amount of intergovernmental consent can supply it (Wakim).

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The signature trap is enforcement by registration. A body that only makes a declaration looks administrative until you notice the declaration is registered and then enforceable as a judgment. Brandy makes that registration the exercise of judicial power, so trace the machinery to the point of enforceability and quote the provision. The registering court need not be the deciding body, and the registration need not be immediate.

The second trap is answering detention from an old script. Al-Kateb let indefinite immigration detention stand on the purpose test, and every pre 2023 note still says so. NZYQ overruled it on the constitutional point. Once there is no real prospect of removal in the reasonably foreseeable future, the detention is punitive and contrary to Chapter III.

Key authorities

• Boilermakers — the two limbs, federal judicial power only to a Chapter III court and such a court only judicial power.★
• Waterside Workers v Alexander — a Chapter III court needs s 72 tenure, so a fixed term appointment is fatal.
• Huddart Parker — judicial power decides a controversy about existing rights by a binding and authoritative decision.
• Precision Data — no single feature is conclusive, and a policy determination creating new rights is not judicial.★
• Brandy — a non court determination becomes judicial once registered and enforceable as a judgment.★
• Thomas v Mowbray — a standard capable of strictly judicial application supports orders on future conduct.★
• Lim — involuntary detention is exclusively judicial unless it fits a recognised non punitive exception.★
• Re Woolley — punitive character turns on the purpose of the law rather than its effect on the individual.
• NZYQ — detention is punitive once there is no real prospect of removal in the reasonably foreseeable future.★
• Alexander — deprivation of citizenship as punishment is exclusively judicial and cannot be given to a Minister.★
• Wilson — a report integral to the Minister's decision is incompatible with judicial office.★
• Wakim — a federal court can never exercise State judicial power, even with full consent.★