Wednesday, March 21, 2012

Australian constitution

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There are a number of constitutional grounds upon which the Families First (Tribunal) Act may be challenged and overturned. The first of these is the third provision in the Act which makes any decisions made by the tribunal enforceable after 0 days. According to the Australian Constitution, only courts defined in chapter III or others created by parliament may make decisions of a judicial nature . It is apparent from the wording of the section that the Family Law Tribunal is not a specific court defined within the sections, therefore, to make decisions of a judicial nature it must be a court created by parliament. It is evident from the facts provided that the Tribunal was not intended to be a court. This is represented through the title “Tribunal” which is associated with administrative functions and also the fact that the title of the head of the tribunal is “President” and not “Justice” as is the case in courts of law and in the constitution. Also the fact that lawyers are not allowed to attend the Tribunal suggests that the Tribunal is more an administrative as opposed to judicial body. There is a strict separation of powers between judicial and administrative bodies, which was clarified by the Boilermakers’ case . As a result it must be determined if the Tribunal being an administrative body is attempting to exercise judicial power. Enforceability was pointed out in Brandy as a criterion for determining judicial power. The facts show that the decisions of the Tribunal are enforceable as an order of the Family Court 0 days after a decision has been made. The judicial nature of the decision is further highlighted by the fact the decision becomes registered as a decision of the Family Court. This stresses the judicial nature of the power the Tribunal is attempting to exercise and as a result can invalidate the actions of the Tribunal.

A further ground upon which the Act may be challenged is the incompatibility doctrine. Under the Persona Designata Rule a judge is capable, in his personal capacity, to be appointed to an office involving the performance of administrative or executive functions. However, the incompatibility doctrine acts as an exception to this rule. A test was laid out in the Wilson case as to when the incompatibility doctrine arises. The test included a number of criteria whether the function was closely connected with the functions of the Legislature or Executive Government; whether the function to be performed must be performed judicially; and whether the performance of the function will be performed without political influence or prospect of exercising a political discretion. The facts of the current situation indicate that the functions of the President of the Tribunal will be closely connected with the functions of the Executive Government due to the nature of the Tribunal. Also that there will be some political influence in the function as the President is required to report on the Tribunal at the request of the Attorney General. However, the most important point is the function of liaising with the media about the Family Law Tribunal and related policy issues. This could allow the President to exert his own political discretion as well as tarnishing the reputation of judges as being independent and objective. This last point was highlighted in Grollo v Palmer. From these points it can be seen that the role of the President of the Tribunal is incompatible with their role as a judge of the Family Court and hence this section of the Act could also be held to be invalid.

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