State Judicial Power Limitations

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STATE JUDICIAL POWER LIMITATIONS□STARTING STATEMENT:The QLD parliament has plenary and ample legislative power to make laws for the peace, welfare and goodgovernment of the state: Union Steamship Coal; Durham holdings. However, under the Kable principle,there is a limit on the legislative power of the state parliaments.Does the law confer power on a State (or Territory) court that may sometimes exercisingfederal judicial power (a Chapter III Court)? ____________________________________________TTIs it a supreme court of a state?State: State Supreme courts are repository of federal judicial power: ss 71, 77(iii) of the constitution. Because of theintegrated judicial system, while there is no strict separation of powers at the state level, a State parliament cannot confer apower upon a court which substantially impairs the courts institutional integrity and is therefore incompatible with the statecourt's role as a (Kable; Emmerson).Is the power incompatible with the institutional integrity of the court as a potentialrepository of federal jurisdiction? (ie in breach of the Kable principle?) _____________________a)Significant deviation from ordinary judicial process.i.not citing reasons:a.was held to be invalid in Wainohu where judge was acting persona designata but counterargument that itwas a non-judicial power failed as Kable applies on personal capacity of judges as well: Wainohu. Cf withGrollo v Palmer .ii.closed court, ex parte proceedings:a.allow courts to decide that particular information is confidential from a party:i.Gypsy jokers: was held to be ok in Gypsy Jokers as there was a criteria for the court to apply to decidewhether material is confidential and have closed court; so not directed by the executive.ii.Pompano: Was held to be ok in Pompano as well where court decided whether to declare a body ascrim org based on evidence. Had independence to decide what weight to give to the evidence and thatthe def cant defend it. have to balance procedural unfairness against prejudice to the investigation ifopen disclosure occurred.b.Cf with international Financial trustwhere ex parte hearings was held invalid despite the fact that the courthad independence to decide if it had reasonable grounds to suspect someone was engaged in criminal activity,the ex parte hearing made it impossible for them to defend themselves, thus, held to be invalid.iii.Alter the burden or standard of proof, including in criminal matters:c.Momcilovic(2011): In Momcilovic; the law had changed the burden of proof where if drugs found in yourhouse, oyu arc deemed to be trafficking drugs. The def argued that it breached the Kable principle due to lackof procedural fairness. Held: not unfair as changing the burden of proof didn't undermine the integrity of thejudicial process or the courts.d.Emmerson v NT(2014): In Emmerson's case , there was automatic forfeiture of property if declared as a drugtrafficker. The legislation could declare anyone as a drug trafficker if they committed the offence within the

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last 10 years. HCA said the law was valid as it did not undermine the integrity of the court by making an orderbased on past conduct.iv.Appoint acting judges:was held to be valid in Forge where the argument that acting judges in the SC ofNSW deprived them of independence because they did not have longterm security of tenure was rejectedbecause it held that it is not a defining characteristic that the court be only composed of permanent fulltimejudges.b)Interferes with independence of courtsa.lack of discretion of the courtwhere AG declared who was a crim org and then court had to make a controlorder was held invalid as it was directed by the Executive: Totanii.CF with Kuczborski, where it was held that determining an organisation as a criminal organisationby AG was ok as it was not the offence creating provision. Court still had to apply criteria todetermine if the other elements of the offence were satisfied before imposing punishment: Kuczborski.b.Ad-hominem laws are considered against the principle of judicial independence as seen as doing theexecutive's bidding: Kable where the legislation was specifically designed to only keep Kable in detention.This was non-judicial as it was for future conduct and the Parliament is making orders via the court whichisn't the court's job.i.Cf with Knight v Victoria, where the law was ad-hominem but it was the parole board that decidednot to relase a prisoner unless they are dying or severely incapacitated. Here, beucase parole board isnot a chapter III court, it was held to be ok.c.Mandatory aggravated penalty isnot contrary to integrity of courtswhere in Magaming, the anaggravated offence meant a greater sentence for the 19 year old accused. HCA held that the minimumsentence range was anterior to judicial proceedings and a matter of legislative concern, thus, enacting theminimum sentence was not inconsistent with judicial integrity. Plus, the court could still take his age intoaccount when sentencing.d.Mandatory penalty based on past conduct is okEmmerson: In Emmerson's case, there was automaticforfeiture of property if declared as a drug trafficker. The legislation could declare anyone as a drug traffickerif they committed the offence within the last 10 years. HCA said the law was valid as it did not undermine theintegrity of the court by making an order based on past conduct.e.require courts to make a particular order if certain criteria are met:i.Emmerson; there was automatic forfeiture of property if declared as a drug trafficker. The legislationcould declare anyone as a drug trafficker if they committed the offence within the last 10 years. HCAsaid the law was valid as it did not undermine the integrity of the court by making an order based onpast conduct.ii.Kuczborski here it was held that the offences that prevented members of a crim org to not associatewith each other or face severe penalty was held valid, as the declaration made by A-G that K was amember of a crim org was not the offence creating provison. It was merely a prerequisite.iii.Fardon :law was held valid because Court has a discretion to determine whether there is'unacceptable risk', according to criteria. Court has discretion as to whether an order should be made,and the type of order. Rules of evidence apply, and hearings are conducted in public.

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iv.Vella:law that prevented people who had serious convictions to be subject to control order if courthad reasonable grounds to believe they would be danger to community was held valid becausedraconian laws do not invalidate the integrity of the court unless they deprive the court of itsdecisional capacity. Here, the harsh laws made were anterior to the judicial process and therefore, it isnot invalid.v.Garlett:court had to make mandatory detention order but it still had discretion to decide whetherthere was an unacceptable riskand if the order was necessary.f.Parliament deciding which offences are serious offences is ok:i.Garlett where HCA rejected that Executive's decision to include robbery as a serious crime wasexaggerated and deprived the court of its institutional independence. Court rejected the argument thatbad or unjust laws affect the institutional integrity of the courts as it is not the court's job to makelaws, it's the Parliament.g.Laws that Laws that prevent serious criminals from obtaining parole have been upheld bythe HCA.i.Baker: Continue detention of serious offenders was considered valid in baker where the plaintiffargued that the court not being able to set a non-parole period for certain prisoners unless there were'special reasons' was rejected because it appeared the court was doing the executive's bidding. HCAheld that special reasons was a valid legislative drafting to encompass all the special circumstancesthe court could take into consideration.ii.Fardon : continued detention of the prisoner after the end of their sentence was ordered if there is anunacceptable riskthat the prisoner would commit based on a high degree of probability.It washeld vlaid as it was not an ad hominem law and court had to apply criteria to decide whether therewas an unacceptable risk. Also they had right of appeal.Conclusion: ________________________________________________________________________□Decide whether the law breaches the Kable principle or not.oIf the law breaches theKable principle, the consequence is it isinvalid .Case summaries:Magamingthe def charged with the offence of smuggling people into Australia carried a penalty of up to 20 years and earned aminimum sentence of 5 years. The def was a 19 year old Indonesian fisherman who argued that the minimum sentencing wasarbitrary and non-judicial. Held valid as sentencing and providing sentence range is a legislative function.Baker v the QueenSentencing Act : Section 13A of the Sentencing Act j989 (NSW) allows life sentences to be commuted to fixed terms for

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