Suchergebnisse

The High Court's Ch III jurisprudence is technical, complex and uncertain. In this article, we consider the extent to which the nature of recent High Court Ch III jurisprudence has affected State responses in the area of tribunal design, and particularly the role of courts in supervising tribunals. Uncertainty around this issue has been caused by the intersection of the general principle set down in Mellifont v Attorney-General (Qld) and the High Court's landmark decision in Kirk v Industrial Court (NSW). In short, while Kirk says that "islands of power immune from supervision and restraint" are to be avoided, the general principle in Mellifont provides that exercises of non-judicial power by a State appellate court are not subject to appeal to the High Court. More recent High Court statements in Momcilovic and Kable (No 2) confirm that the possible effect of the general principle in Mellifont is to create the islands warned of in Kirk. Through a recent South Australian case study, we explore whether this uncertainty is circumscribing State experimentation with institutional design.

There is nothing quite like money to divide families, friends, or the High Court it seems. Pape v. Federal Commissioner of Taxation, the third case in which the High Court has directly considered the constitutional basis of the federal Executive's general capacity to spend money, has, on the one hand, provided important clarification as to the basis of the power, but on the other has again given rise to a multiplicity of reasoning between the justices of the Court as to the exact breadth of the power. The Court accepted a more limited basis for the spending power than had previously been assumed by many in Government. This conclusion serves to highlight the importance of the breadth of the other heads of Commonwealth power for the Commonwealth's ability to engage in spending activities. ; Gabrielle J. Appleby and Stephen McDonald