Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution

AuthorWendy Lacey
Published date01 March 2003
Date01 March 2003
Subject MatterArticle
Wendy Lacey*
The separation of judicial power from executive and legislative power has long been
recognised as an important measure for guaranteeing individual liberty and for
safeguarding against tyranny.1 As Winterton has noted, '[d]ividing governmental
power is the oldest device for restraining it, and thereby protecting liberty'.2 However,
it has also been widely recognised, particularly in recent years, that by entre nching the
separation of federal judicial power, Chapter III of the Australian Constitution may offer
individual guarantees beyond the arbitrary exercise of executive or legislative power.3
Consideration of exactly what these guarantees may include has significantly
contributed to the recent interest in Chapter III of the Constitution. As one commentator
proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the
defining features of the last decade of A ustralian constitutional law'.4 This trend has
raised many questions relating to the nature of judicial po wer and judicial
independence, and the extent to which it does, and can, protect individua l liberties.
The emergence of these questions has been influenced and shaped by developments in
international law on human rights generally. In this respect, it reflects a broader trend
in Australian law to consider the domestic relevance and application of international
* Lecturer, School of Law, University of Adelaide; PhD candidate, University of Tasmania.
1 James Madison wrote in The Federalist No 47, 'The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appo inted, or elective, may justly be pronounced the very de finition of
2 George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in
Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of
Professor Leslie Zines (1994) 185.
3 W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1997) 322;
Winterton, above n 2, 187-8; George Williams, Human Rights Under the Australian
Constitution (1999) 198.
4 Fiona Wheeler, 'The Rise and Rise of Judicial Power under Chapter III of the Constitution: A
Decade in Overview' (2000) 20 Australian Bar Review 283, 283.
58 Federal Law Review Volume 31
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human rights standards,5 despite the general absenc e of express statutory or
constitutional protection of human rig hts.
Of central importance within this trend, has been the issue of what rights or
guarantees are capable of implication from the specific sections of Chapter III. In
grappling with this question, attention has largely centred on the right to a fair trial,6
rights to due process or judicial process, 7 and the right to equality.8 This 'rights-based'
approach has tended to dominate analysis of implications drawn from Chapter III and,
consequently, may have prevented the detailed consideration of alternative
approaches more reflective of the actual text and structure of Chapter III. One such
approach includes as its basis (and, therefore, its point of departure) the drawing of
implications that relate to the powers and jurisdiction of federal courts, and
specifically, what is commonly referred to as the 'inherent jurisdiction ' of the courts.
In many respects, it should come as no surprise that commentators refer to 'rights'
within the curial process and, particularly, within criminal pr ocedure. The
international instruments to which Australia is bound, together with guarantees at
common law, are largely considered to be declaratory of spec ific individual 'rights'.
Thus, we refer to the 'right' to a fair trial, the 'right' to silence, and the 'right' to legal
representation. In some instances, we refer to negatively expressed rights in the sense
of freedoms, including the freedom a gainst self-incrimination and the free dom from
arbitrary detention. Yet, in all cases we speak generally of the rights ( whether positive
or negative) of individuals, though rarely of absolute rights. While 'rights-based'
language is common in modern legal settings, it often betrays the fact that individual
rights (whether referred to as rights, guarantees, freedoms, protections, safeguards or
liberties) are protected, and are capable of protection, through various means. Included
within those means are methods more subtle than the legally enforced, and legally
enforceable, positively expressed individual rights. The relative absence, however, of
many such rights within Australian domestic law (whether under the Constitution,
statute or common law)9 appears to have influenced the deba te regarding implied
guarantees under Chapter III of the Constitution. Thus, we have witnessed a tendency
to refer to the potential implied protection of various rights or guarantees under
Chapter III: the right to a fair trial or the right to due process being the most prominent
5 See, eg, David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential
6 Dietrich v The Queen (1992) 177 CLR 292, 362 (Gaudron J) and 326 (Deane J); Re Tracey; Ex
Parte Ryan (1989) 166 CLR 518, 579 (Deane J); Re Nolan; Ex Parte Young (1991) 172 CLR 460,
493 (Gaudron J).
7 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1, 29 (Brennan, Deane and Dawson JJ); Re Tracey; Ex Parte Ryan (1989) 166 CLR 518, 580
(Deane J); Re Tyler; Ex parte Foley (1993) 181 CLR 18, 34 (Dean e J); Polyukhovich v
Commonwealth (‘War Crimes Act Case’) (1991) 172 CLR 501, 614–6 (Deane), 684–5 (Toohey J),
and 703–4 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 502–3 (Gaudron J).
8 Leeth v Commonwealth (1992) 174 CLR 455, 483–92 (Deane and Toohey JJ), and 502–3
(Gaudron J); Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 247–8
(Deane J); Kruger v Commonwealth (‘Stolen Generations Case’) (1997) 190 CLR 1, 94–7 (Toohey
9 See, eg, George Williams, 'Civil Liberties and the Constitution—A Question of
Interpretation' (1994) 5 Public Law Review 82, 83.

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