Case: Nicholas v The Queen [1998] HCA 9 ; (1998) 193 CLR 173
Outcome: considered
In Nicholas v The Queen [1998] HCA 9 ; (1998) 193 CLR 173 , Brennan CJ considered the validity of legislation governing practice or procedure. His Honour said (at [23]): The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. (Footnote omitted.) 24 The applicant accepts that a law prescribing court practice or procedure does not direct the exercise of a judicial power and Parliament has the power to legislate to change the laws of evidence and procedure. However, the applicant argues that s 31A of the Federal Court Act represents the passing by Parliament of a law that directs the exercise of judicial power. 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ). 58 The applicant refers to various Imperial Acts. As Brennan CJ observed in Nicholas at [23] by reference to the Evidence Act 1843 (Imp) 6 &amp;7 Vict c 85, ' it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power '. The same applies to setting a test for summary disposal. 59 The applicant submits that '[t] he Bill of Rights is a law of the Australian Capital Territory ' and grants the right to petition ' without suffering or enduring "commitments and prosecutions" ' (Art 5 of the Bill of Rights 1688 ). The applicant submits that s 31A of the Federal Court Act is in breach of Art 5, as the power to grant summary judgment constitutes a commitment or prosecution against petitioners (plaintiffs) against the Crown. 60 The Bill of Rights 1688 is not relevant. Section 31A is not a "commitment" or "prosecution".