Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution

Abstract

The separation of judicial power from executive and legislative power has long been recognised as an important measure for guaranteeing individual liberty and for safeguarding against tyranny. As Winterton has noted, '[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty'. However, it has also been widely recognised, particularly in recent years, that by entrenching the separation of federal judicial power, Chapter III of the Australian Constitution may offer individual guarantees beyond the arbitrary exercise of executive or legislative power. Consideration of exactly what these guarantees may include has significantly contributed to the recent interest in Chapter III of the Constitution. As one commentator proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the defining features of the last decade of Australian constitutional law'. This trend has raised many questions relating to the nature of judicial power and judicial independence, and the extent to which it does, and can, protect individual liberties. The emergence of these questions has been influenced and shaped by developments in international law on human rights generally.