Separation of Powers (LAWS70424)

In the absence of an Australian bill of rights, the separation of powers doctrine is one of the key foundations for the imposition of restrictions on legislative and executive power in Australia.

This subject examines recent developments in the constitutional implications that prevent the conferral of non-judicial functions on federal courts, the conferral of federal judicial power on anyone other than courts, and the related implications concerning the constitution and functions of state courts, including limitations on legislative or executive directions to those courts.

The issues of substantive constitutional law will be examined through the prism of the law and practice that governs constitutional litigation in the High Court. The subject is structured by reference to two hypothetical case studies in which participants will be taught to: identify the substantive issues arising from the case studies; draft the main kinds of initiating process in the High Court; consider the choices involved in various procedural steps in constitutional litigation; draft submissions addressing those steps; identify the facts necessary to advance the selected constitutional arguments; address in detail, in the course of drafting written submissions and preparing oral submissions, the substantive questions of law that arise from the case studies; and write a judgment disposing of the case studies.

Principal topics include:

• The meaning of ‘judicial power’
• Aspects of the High Court’s original and appellate jurisdictions
• Separation of powers under the Commonwealth Constitution at the federal level
• The protection of state courts under the Commonwealth Constitution – Kable and cases developing or reformulating the Kable principle; also, Kirk.