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Homework Question - Constitutional Law - Cth Governance of State Prisons

Discussion in 'Australian Law School Homework Questions' started by AllForHer, 20 April 2016.

  1. AllForHer

    AllForHer Well-Known Member

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    I ordinarily prefer not to pose my 'homework questions' to others because I don't think it's the best way to learn about any one of my law degree subjects, but as many may know, I post answers often on this forum and generally trust the people who use it.

    This is more of a 'Am I on the right track?' question than anything else.

    The question regards Constitutional Law. Summarily, the hypothetical situation is that the Commonwealth has passed legislation governing how State prisons manage their disciplinary procedures against prisoners. It establishes a 'court' of sorts, which places two prison guards and an inmate nominated by the defendant on the Bench to determine whether or not the defendant has breached an internal code of conduct established by the prison itself.

    As I understand it, the Commonwealth has the power to establish courts, etc., but in my view, the establishment of this particular 'court' is unconstitutional.

    First, it's my understanding this legislation would confer judicial powers on a non-judicial body, against the Boilermakers' Case.

    Second, an inmate nominated as a 'judge' by the defendant would not therefore by nominated by the Governor General in Council, and would not meet the requirements of tenure or salary, and would fundamentally already fall within the realm of 'proved misbehaviour'.

    Third, procedural fairness would not be upheld, which is of course not a constitutional right, but does fair in High Court decisions relating to procedural fairness with respect to the Constitution.

    This is just my 'first glance' assessment of the scenario. Am I on the right track?
     
  2. Tim W

    Tim W Lawyer

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    Start with the very validity of the law - under what head of power (from the list in s51)
    does the Commonwealth purport to be legislating?

    I assume that in the question as written there has been no referral under section s51(xxxvii)?

    Then think about section 109... but be careful.
    it is important to remember that "a law of the Commonwealth"
    needs to be valid before s109 can operate on it.
    If it's a nullity, then there's nothing that can prevail anyway.

    Then maybe talk about whether or not it's a Chapter III court - it won't be, but you'll need to say why not.
    Discussion of the original Australian Military Court, and why it wasn't one,
    may be mark-scoring here.

    Then ask yourself if the "court" is not some sort of administrative tribunal - which it isn't.
    And, if you want to shoot for an HD, remember to mention that even if it was valid, and was a Chapter III court, the prisoner could not sit, because he's under a legal disability...
     
  3. AllForHer

    AllForHer Well-Known Member

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    @Tim W, you're amazing. Thank you so much.
     

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