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.

Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom

2018 ◽  
Vol 46 (1) ◽  
pp. 113-136 ◽  
Author(s):  
Alex Deagon
Keyword(s):  
Social Order ◽  
Religious Freedom ◽  
State Power ◽  
The State ◽  
High Court ◽  
Free Exercise ◽  
Sharp Distinction ◽  
Theoretical Assumptions ◽  
The Future ◽  
High Court Of Australia

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia. However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation. This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order. The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

scholarly journals BAKER V THE QUEEN & FARDON V ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

2005 ◽  
Vol 10 (1) ◽  
pp. 271 ◽  
Author(s):  
OSCAR ROOS
Keyword(s):  
Attorney General ◽  
The State ◽  
Title Page ◽  
Judicial Power ◽  
Criminal Sentencing ◽  
High Court ◽  
High Court Of Australia ◽  
Constitutional Protections

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In 2004, the High Court of Australia had cause to revisit its 1996 decision in </span><span>Kable</span><span>, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of </span><span>Fardon </span><span>and </span><span>Baker </span><span>demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be “tough on crime”. The so-called “</span><span>Kable </span><span>principle”, as construed by the High Court in 2004, may prove to be the “constitutional watch dog that barks but once”.</span><span>] </span></p></div></div></div>

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

scholarly journals In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions

2017 ◽  
Author(s):  
Kevin C. Walsh
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
Structural Relationship ◽  
State Court ◽  
Court Decisions ◽  
Court System ◽  
Federal Law ◽  
Federal Judiciary ◽  
Federal Jurisdiction ◽  
In The Beginning

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed with the Act. It provided for Supreme Court appellate review of certain state court decisions denying the federal-law-based rights of certain litigants.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

2013 ◽  
Author(s):  
Simon Evans ◽  
Julia Watson
Keyword(s):  
Human Rights ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Key Features ◽  
The Uk ◽  
High Court Of Australia ◽  
The Impact

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.

‘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.

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