Chapter III Court

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In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.

Separation of powers in Australia[edit]

The doctrine of separation of powers refers to a system of government whereby three aspects of government power: legislative power, 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.[1] 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.

What constitutes a Chapter III Court[edit]

Federal courts must have those features contained in Chapter III of the Constitution of Australia.

These features serve two purposes: first, they prescribe the features of any court created by the federal government; 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 before their appointment); and receive a remuneration which must not diminish during their term in office.

Chapter III judges cannot be removed except upon an address from both houses of the Parliament of Australia 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.

What constitutes judicial power[edit]

Judicial power is not defined in the Australian Constitution. Instead, it must be determined by reference to seven indicia,[2] viz:

  1. binding and conclusive decisions
  2. enforceability
  3. decisions made about existing rights or duties
  4. discretion limited to situations with legally ascertainable tests
  5. need for a controversy
  6. opinion of the drafters of the Constitution
  7. nature of the body on which power is conferred

Chapter III Courts as sole wielder of judicial power[edit]

The judicial power of the Commonwealth can only be exercised by a Chapter III Court.[3] 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.

There are some exceptions to the rule. Firstly, judicial power may be given to a non-judicial agent provided the judges still bear the major responsibility for exercise of the power and the exercise of power is subject to court review.[4]

Secondly, there are four discrete exceptions:

  1. contempt of Parliament
  2. courts-martial
  3. public service tribunals
  4. detention
    • of non-citizens
    • of the mentally ill or those with infectious diseases
    • by police for a limited period of time
    • for the welfare/protection of a person

Chapter III Courts wielding non-judicial power[edit]

A Chapter III Court cannot discharge powers other than judicial power, except where the function is ancillary to the purpose of the judicial function. In The Boilermakers' Case,[5] the High Court held that a court that discharges both arbitration and judicial powers 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 (1974), powers such as reorganising unions and invalidating union rules were allowed to be exercised by a Chapter III court.

However, the exclusion of non-judicial power from a Chapter III court does not preclude individual justices from performing non-judicial functions, provided that they do so in their personal capacity; that is, they act as "persona designata".[6]

List of Chapter III courts[edit]

See also[edit]


  1. ^ Wilson v Minister for Aboriginal Affairs (1996)
  2. ^ Huddart, Parker & Co Pty Ltd v Moorehead (1909)
  3. ^ Re Wakim; Ex parte McNally (1999)
  4. ^ Harris v Caladine (1991)
  5. ^ R v Kirby; Ex parte Boilermakers' Society of Australia (1956)
  6. ^ Hilton v Wells (1985)

External links[edit]