Due Process, Judicial Power and Chapter III in the New High Court

2004 ◽  
Vol 32 (2) ◽  
pp. 205-224 ◽  
Author(s):  
Fiona Wheeler
Keyword(s):  
Due Process ◽  
Judicial Power ◽  
High Court

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

‘Arrest, Arrest, Arrest’

2021 ◽  
pp. 283-315
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Human Rights Law ◽  
High Court ◽  
Legal Standards ◽  
Everyday Work ◽  
The Face ◽  
Court Of Appeal ◽  
Police Practices

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.

Part V Separation of Powers, Ch.28 The Separation of Judicial Power

2018 ◽  
Author(s):  
Foster Michelle
Keyword(s):  
Separation Of Powers ◽  
Judicial Power ◽  
Controversial Issues ◽  
Individual Rights ◽  
High Court ◽  
The Core ◽  
Future Developments ◽  
Methods And Techniques ◽  
History Of

This chapter discusses the separation of judicial power principle in Australia. First, it considers the history of the principle and whether it was intended or assumed by the Constitution's drafters. Next, the chapter examines the evolution of the principle in the High Court's jurisprudence, as well as its underlying rationales. Hereafter, this chapter considers the practical ramifications of the principle, and the methods and techniques adopted by the High Court to respond to some of its ‘inconvenient’ consequences. Finally, the chapter considers two of the core underlying rationales in the context of controversial issues in contemporary jurisprudence. It analyses the separation of judicial power principle and the protection of individual rights, in addition to the separation of judicial power principle and federalism. The chapter concludes by briefly commenting on likely future developments.

Military Justice and Chapter III: The Constitutional Basis of Courts Martial

2012 ◽  
Vol 40 (2) ◽  
pp. 161-180
Author(s):  
Jonathan Crowe ◽  
Suri Ratnapala
Keyword(s):  
Military Personnel ◽  
Judicial Power ◽  
Service Discipline ◽  
High Court ◽  
Service Personnel ◽  
Military Justice ◽  
The Third ◽  
Rules Set

The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not ‘the judicial power of the Commonwealth’ within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is ‘the judicial power of the Commonwealth’, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.

Rights Review in the High Court and the Cultural Limits of Judicial Power

2013 ◽  
Vol 41 (3) ◽  
pp. 585-608
Author(s):  
Robert Woods
Keyword(s):  
Judicial Review ◽  
Judicial Politics ◽  
Legal Culture ◽  
Judicial Power ◽  
Institutional Constraints ◽  
Constitutional Rights ◽  
High Court ◽  
Rights Protection

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

Response: Recent Development regarding Judicial Review of Legislative Process in Israel

2020 ◽  
Author(s):  
Gonen Ilan
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
The State ◽  
Legislative Process ◽  
High Court ◽  
Court Of Justice ◽  
State Economy ◽  
Recent Developments ◽  
First Time

Abstract In an article published recently in the Statue Law Review,1 Prof. Shucheng Wang has examined the deferential approach to judicial review of the legislative process as adopted by the CFA,2 due to the Leung3 case. In this short response, I focus on two issues that are not mentioned in Prof. Wang’s article but that are crucial for understanding recent developments concerning judicial review of the legislative process in Israel by Israel’s High Court of Justice (HCJ). First, this response will present the most recent, and more crucial, ruling of the HCJ from late 2017 in the Quantinsky v. The Israeli Knesset (2017)4 which established a new precedent and in which, for the first time in Israel’s history, a new law was invalidated due to flaws in the legislative process. Second, I wish to emphasize the specific type of law that was invalidated and that is more prone to flaws in the legislative process: The Omnibus Law of Arrangement in the State Economy, which includes hundreds of budget statutes, and is characterized by a very unique and hasty legislative process. Therefore, this response wishes to complement Prof. Wang’s thesis and provide an update regarding the Israeli HCJ judicial approach of due process of legislation.

scholarly journals Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia

2020 ◽  
Vol 48 (2) ◽  
pp. 186-213
Author(s):  
Pamela Stewart ◽  
Anita Stuhmcke
Keyword(s):  
Rule Of Law ◽  
Judicial Power ◽  
Public Confidence ◽  
High Court ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
High Court Of Australia ◽  
Substantive Law ◽  
Available Information

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Right of Appeal under Section 35 of the Arbitration Act of Kenya

2021 ◽  
Vol 6 (1) ◽  
pp. 137-166
Author(s):  
Vianney Sebayiga
Keyword(s):  
Literature Review ◽  
Supreme Court ◽  
Due Process ◽  
Supreme Court Decision ◽  
Court Decisions ◽  
Party Autonomy ◽  
High Court ◽  
Arbitral Award ◽  
The Supreme Court ◽  
Court Intervention

An arbitral award is final and binding on the parties but may be set aside for failure to adhere to due process requirements. Section 35 of the Arbitration Act (Act hereafter) provides grounds for setting aside an arbitral award. It does not state whether decisions of the High Court on setting aside an arbitral award are final and thus cannot be appealed. In Nyutu Agrovet Limited v Airtel Networks Limited, the Supreme Court interpreted Section 35 to allow appeals on High Court decisions of setting aside an arbitral award. This paper analyses the Supreme Court decision and finds that it abrogated the internationally recognised arbitration principles such as party autonomy, the finality of arbitral awards and limited court intervention. Additionally, the paper discusses the implications of the decision on arbitral practice in Kenya. Using literature review and comparative jurisprudence, it advances that Section 35 does not allow appeals on decisions of the High Court. To this end, it proposes better interpretation techniques to safeguard the sanctity of arbitral awards.

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