Melbourne Law School - Theses
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ItemKeeping courts judicial: chapter III of the Australian Constitution, the creation/determination distinction and preventative control order regimes( 2014)The meaning of the "judicial power of the Commonwealth" under Ch III of the Australian Constitution is both fiercely contested and constitutionally vital. The two limbed separation of judicial power under Ch III requires that only Ch III courts may exercise such power (the first limb of the separation), and that those courts may only exercise Commonwealth judicial power (the second limb). This thesis argues that one aspect of the definition of Commonwealth judicial power should be strengthened. Moreover, it argues that this strengthened approach will provide a means of challenging preventative control orders. In the first Part of the thesis, I argue that—as a matter of authority and principle—Ch III courts may only be empowered to determine and apply legal rules and norms; they cannot be empowered to create new legal standards. This principle is longstanding, but has come under attack in more recent times; its strength has also been said to have been eroded by various "exceptions" to the separation of judicial power. This thesis shows that creation/determination distinction retains much of its force. In doing so, I adopt a moderate approach to the question of determinacy, which emphasises that laws need only be sufficiently determinate for judicial application. The idea that there is a "spectrum of determinacy" also permits a more flexible approach to the application of the exceptions. In the second Part, I apply this reasoning to preventative control order laws. I show that the prohibition upon courts exercising non-judicial powers, taken together with the creation/determination distinction, may provide the best means of delimiting the validity of such laws. I use the cases of Thomas v Mowbray (2007) 233 CLR 307 and South Australia v Totani (2010) 238 CLR 1 to buttress my claims about the second limb in general, and the continued force and effect of the creation/determination distinction in particular. I then apply this reasoning to control order laws more generally, arguing for greater emphasis to be placed upon their second limb invalidity.