Analysis of Constitution Law Cases: Separation of Powers and Public Interest

This article analyzes the validity of the Community Protection from Offenders Act 2018 (NSW) and the Sentence Adjustment Act in relation to the doctrine of separation of powers and public interest. It discusses the cases of Al-Kateb v Godwin, Ex parte Boilermakers’ Society of Australia, Kable v Director of Public Prosecutions, Fardon v Attorney-General, South Australia v Totani, and Wainohu v NSW. The article concludes that the legislation in context may be partly rendered void and partly upheld.

Running Head: CONSTITUTION LAW
CONSTITUTION LAW
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Author Note

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Answer 1
The judgement in the case of Al-Kateb v Godwin [2004] HCA 37 which better reflects
the objective of the doctrine of separation of powers and the intention of the constitution drafters
is the one which had been provided by the minority judges. In this case it had been held by the
court that it is lawful to indefinitely detain a lawful person. The doctrine of separation of
powers asks for the powers of three wings of the government to be separated from each other so
that they can function independently and effectively. Under the doctrine the judiciary is also kept
separate from the executive and legislature so that they can made effective decisions without any
interference and pressures in the light of the laws made by the legislature.
The doctrine had been discussed by the court in the case of Ex parte Boilermakers’
Society of Australia (1956) 94 CLR 2541. The case was in relation to Commonwealth Court of
Conciliation and Arbitration. The court had the responsibility of restricting and settling
industrial disputes. In relation to the function the court had been provided with power to set out
the rules regarding industrial awards and to ensure compliance with the rules. The primary issue
in this case was in relation to the difference between non judicial and judicial powers and bodies.
The High court in this case had to decide whether the arbitration court is to be considered as a
non judicial body as it had arbitral focus. And if this is the case then can it be provided with
judicial powers by the parliament such as finding people guilty and issuing injunctions. The
court had to find out whether this was in breach of the doctrine of separation of powers. The
court held in this case that arbitral powers are not they are not the same as judicial powers. Both
the powers depend for their ultimate validity on legislative power. Both provide a dispute and an
investigation or hearing and a decision. However the difference lies where the judicial power is
1 Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

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related to declaration, ascertainment and enforcement of responsibilities and rights of the parties
like they are present or ought to be present at the time proceedings are filed. On the other had the
function of the arbitral powers with respect to industrial disputes is to declare and set out but not
to have apply the opinion or the arbitrator ought to be the liabilities and rights if the parties with
respect to each other.
It has been provided by Chapter III of the constitution that powers which are foreign in
relation to judicial powers should not be attached to the courts which have been created by or
under the chapter for applying commonwealth judicial power. In relation to the rule it had been
stated by the court that the arbitral court should not be allowed to deploy both its judicial and
arbitral functions and as the arbitral court has arbitration as its primary function it cannot
exercise judicial powers. Therefore the combined effect of the decision of this case signifies that
the judicial powers of the commonwealth can be exercised by only the chapter III courts and the
Chapter III courts do not have the right to exercise non-judicial powers. However the strict
implementation of the doctrine of separation of powers has been reduced in the last 60 years
progressively.
The primary intention of the drafters of the constitution was to ensure that there is no
overlap between the three autonomous sources of power which are the executive, legislature and
the judiciary as per ss 1, 51, 61 and 71. The executive have been provided powers to detain a
person who is stateless or has illegally migrated to Australia under the provisions of the
Migrations Act 1958 (Cth). The issue in the case of Al-Kateb v Godwin [2004] HCA 372 was
whether only the judiciary should be provided with the power to detain a person indefinitely.
2 Al-Kateb v Godwin [2004] HCA 37

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The question is also that whether quasi-judicial powers are being exercised by the executive
towards detaining stateless people indefinitely.
It can be clearly made out that in situation where detaining in a judicial powers, the
exercise of such power by thee executive would be an infringement of the doctrine of separation
of power under the Boilermakers’ case. There is also an ambiguity in the provisions of section
196 of the MA 1958. It can be argued in this situation that the original drafters would have
required more precise and specific use of language for the purpose of enabling indefinite
detention instead of the gap which is present between s198 and 196 of the MA.
In the present case the minority held that the use of power by the executive to indefinitely
detain was not consistent with the provision of chapter III and were more aligned with the
intention of the original drafters. On the other hand indefinite detention by the executive was not
found to have violated the provisions of chapter III by the majority. It is clear thorough the
decision of the court that the minority had better reflected the doctrine of separation of power
through their decision as they were not in favour of allowing the executive to use both judicial
and non judicial powers. This was majorly due to the application of the principles of chapter III
and the intention of the drafters.
Answer 2
The in order to analyze the validity of the Community Protection from Offenders Act 2018
(NSW), the application of cases like Kable v Director of Public Prosecutions (NSW) [2013]
HCA 263 case and Fardon v AG QLD4. In case the provision of the Kable case is to be applied
3 Kable v Director of Public Prosecutions (NSW) [2013] HCA 26
4 Kable v Director of Public Prosecutions (NSW) [2013] HCA 26

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the validity of the legislation is unlikely to be upheld. On the other had can also be argued that
the facts provided through the question are closely linked with the case of Fardon v AG QLD
case. In the cases of Totani5 and Wainohu6 it had been stated by the court that judges cannot be
compelled to uphold a law and they have the right to retain their discretion. Specifically the
application of the case of South Australia v Totani [2010] HCA 39 may signify that the situation
in relation to the facts in the questions are consistent but if the judges are forced to make the
order the law may be invalidated. In addition the application if Wainohu v NSW [2011] HCA 24
would provide that in case the judges will not be able to provide a reason the law would be
invalidated.
It has been provided through the facts of the problem question that NSW have passed the CPOA
2018 under which the Supreme Court Judges are allowed to extend the prison sentences up to
three months of the prisoner is deemed to be a major risk to the community, is charged with an
offence of sexual intercourse with a child or have been recommended for further detention by
parole board or other such authorities.
In the Kable case it had been ruled by the judges that when a judicial body is provided with a non
judicial power it is to be considered unconstitutional as it is not allowed by chapter III of the
constitution. The court in this case had rendered the Community Protection Act 1994 void under
which the court was provided with the power to detain a person in prison in case the court finds a
person to be a threat for the society. The facts are similar to the facts provided via the problem
5 South Australia v Totani [2010] HCA 39
6 Wainohu v NSW [2011] HCA 24

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question and thus in the same way the legislation in context should also be rendered as void
under this case as it also provide non judicial powers to the court. On the other hand in the case
of Fardon v Attorney-General (Qld) (2004) 223 CLR 575 similar issues had been discussed by
the high court. Here a law was passed to allow the court to detain a prisoner who is a sex
offender to for the protection of the community. The court could extend the detention on the
request of the attorney-journal. It had been held by the majority in this case against the doctrine
of separation of powers that this was a valid law. This is because the legislation was for the
protection of the community rather than punishing an individual. The application of this case can
lead to the argument that the legislation in context is valid as it has also been done in relation to
protection of the community. The case of South Australia v Totani signified that the legislative
power which have been provided to a state does not allow it to make laws which may deprive a
state court of one of its major characteristics. The court in this case found that the law was
invalid as it gave powers to the court to restrict the liberty of a person whether or not the person
had committed or is likely to commit any criminal wrong. The facts of this case may be
applicable in certain situations of the problem question such as the court having discretion to
detain a person and such provisions should be rendered as invalid according to this case. In
conclusion it can be state that the legislation in context may be partly rendered a void and partly
upheld. The law through which the court may according to the opinion of the other authorities
extend detention can be upheld without infringing the doctrine of separation of power.
Answer 3
In the present situation it has been provided that the passing of the Sentence adjustment Act
according to which the chief commissioner of police has been allowed to make an application to
the supreme court for extension of sentences of a prisoner who has been guilty of terrorism

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offence before March 2010 by adding at least 10 years and maximum 20 years in case the police
can through before the court that the actions are in Public Interest. According to the legislation
the certificate of Attorney General is to be considered as a substantial proof that the extension of
the sentence is in Public Interest. According to the doctrine of separation of powers which has
been discussed above it is not allowed that a non judicial function is to be exercised by a judicial
body. In the same manner or non judicial body is not allowed to exercise judicial function.
However the application of the Doctrine in Australia has not been very strict as seen in the case
of Fardon v Attorney-General (Qld) (2004) 223 CLR 5757 discussed above. It has been already
clarified in the case that in case and act is for public interest, it can be upheld even if it is
contrary to the provisions of chapter III of the constitution. In the same way it is to be considered
in this situation that whether the actions which have been proposed through the legislation are in
public interest or not when it comes to the situation of Bob Smith. The Attorney General is
already satisfied by the fact that it would not be of public interest that Bob Smith is released and
that is why a sentence is to be extended. The case of Fardon v Attorney-General allowed the
decision taken by the Attorney General to be used by the court for detaining a person in Public
Interest. Therefore it would also be allowed to ensure that Bob Smith is detained for a further
period as the Attorney General things that it would not be of public interest to release him. On
the other hand if we are subjected to a situation where more than 20 people have been accused of
terrorism before March 2010 the decision would be the same. This is because the rule of law is
applicable on all people and there cannot be an exception. If the law has been interpreted
correctly in a manner it is to apply uniformly on everyone except in the case of ambiguity. In the
7 Kable v Director of Public Prosecutions (NSW) [2013] HCA 26

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present situation it can be seen that there is no form of ambiguity in the law as the facts of the
situation are very similar to the case of Fardon v Attorney-General. The application of this case
will lead to render the law valid on both occasions.

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Bibliography
Al-Kateb v Godwin [2004] HCA 37
Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Kable v Director of Public Prosecutions (NSW) [2013] HCA 26
South Australia v Totani [2010] HCA 39
Wainohu v NSW [2011] HCA 24