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

Running Head: CONSTITUTION LAW
CONSTITUTION LAW
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1CONSTITUTION LAW
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

2CONSTITUTION LAW
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