LAW 1504 Lecture Notes - Lecture 3: Persona Designata, Judicial Independence, William Deane
23 May 2018
School
Department
Course
Professor
Advantages and Disadvantages of Boilermakers
FOR the 1st limb
AGAINST the 1nd limb
Separation of L, E and J = checks and balances
✓ G. Appleby: “judicial power needs to be protected, the independence of
the judiciary and the independent exercise of judicial power is a must
× BUT Disagree with strictness of BM two limbed test
× Inefficient- Brandy would
have been much faster,
cheaper etc, if it ended at
the commission
Independent judiciary protects independent rights; limits executive power
✓ Deane J in Street v Queensland Bar Association, the separation of
powers ‘is the most important of the guarantees if rights and immunities,
express or implied, under the Australian Constitution’
✓ Wilson v Minister for Aboriginal and Torres Straight Islander Affairs,
‘the guarantee of liberty and, to that end, the independence of ch III
judges”
× Duplicated process- have
to start again in court after
the commission
Stops the politicization of decisions- judges have tenure
× inflexibility; independent
most of the time
Implication founded in text/ structure; history/ theory; federalism
× Implication is tenuous
Democracy is overrated, electing judges is inconsistent with tenure,
✓ Judges are applying the law not their personal choice
Alternatives to Boilermakers
Boilermakers second limb alternative
No persona designata- Apply the incompatibility test
✓ “Fed Ch III courts can only exercise powers that are compatible with their exercise of federal judicial
power”
✓ Kable incompatibility test.
BUT: Difficulties with defining whether something is compatible or incompatible.
× No worse than 2nd limb which grapples with defining judicial power- requires fact and degree
consideration/ chameleon powers
Can we retain the first limb and get rid of the second?
✓ Fist limb is significant. Courts are independent and impartial bodies which exist to resolve disputes.
Stands between Individuals and governments
A dispute cannot be given to executive tribunals where tenure is non-existent and independent
decisions can be made without guarantee of judicial independence from the executive- leaves gates
open for arbitrary power
Can we part with both limbs?
Carefully: Courts would have to police when judicial power can be exercised by a non-ch III court
× EG: to determine the rules surrounding criminal guilt and then to enforce them could not be
vested in a minister
Court would need to determine adequate safeguards
× To determine and punish criminal guilt might be an exception to remain with Ch III courts
× Other functions of judicial power aren’t so important and can be given to a body other than a ch
III court
Instead of drawing an implication from the constitution regarding the exclusive vesting, a different
interpretation could be had so as to establish an implication of the importance of judicial impartiality
Why we should keep Boilermakers
First limb difficulties are the price we pay- utilitarianism- Greatest happiness of greatest number
Any other principle established would take a considerable amount of time (still as slow as
Boilermakers)
the process of boilermakers isn’t perfect- that isn’t its purpose.
Purpose= protect individuals from the arbitrary use of power- that cannot be a simple process- needs
to be strict and rigid to avoid the infiltration of the executive into the judicial realm.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Separation of l, e and j = checks and balances. G. appleby: judicial power needs to be protected, the independence of the judiciary and the independent exercise of judicial power is a must. But disagree with strictness of bm two limbed test. Inefficient- brandy would have been much faster, cheaper etc, if it ended at the commission. Independent judiciary protects independent rights; limits executive power. Deane j in street v queensland bar association, the separation of powers is the most important of the guarantees if rights and immunities, express or implied, under the australian constitution". Wilson v minister for aboriginal and torres straight islander affairs, The guarantee of liberty and, to that end, the independence of ch iii judges . Stops the politicization of decisions- judges have tenure to start again in court after the commission inflexibility; independent most of the time. Implication founded in text/ structure; history/ theory; federalism. Democracy is overrated, electing judges is inconsistent with tenure,
