Characterisation and Separation of Powers

Introduction The constitutional validity of the Regulating Organic Food Security Act 2014 (Cth) (Impugned Act, hereafter referred to as IA) is an issue that will be discussed in this essay in addition to whether the National Organic Food Security Commission is valid as well. Both of these will be discussed with regards to the issues of characterisation and separation of powers. Head of power/Trade and Commerce Firstly the scope of power in this case is non-purposive and the physical movement of organic food across state borders satisfies the term trade[1], a term which is enumerated in s51 (i)[2] of the Australian Constitution, under trade and commerce. However the issue arises of whether the IA applies to interstate only. It is implied that s 51 (i) does not give rise to a legislative powers in regards to trade and commerce operating intrastate. For the IA to be enforceable upon 'Healthy Meals Now' and 'Get-it-there-Quick' it must purport to regulate intrastate trade and commerce.Despite this even though there is no explicit power to support intrastate trade regulations[3], intrastate trade may be allowed and be regulated if it is intimately connected to interstate trade and commerce[4] as well as if it is fundamentally economically linked with interstate trade and commerce[5] in which case reasonably is. In determining the constitutional validity of the IA, the Commonwealth Constitution head of power must be interpreted. In relation to this, there are two approaches that can be utilised when observing the IA and the first is to view the IA in regards of the narrow ‘golden rule’ approach or secondly on a broad interpretation approach. Both of these have similar fundamentals in terms defining words on their plain definition so that it does not create an illogical outcome. Hence to determine constitutional validity it is in essence to interpret the restrictions of the head of power. In this case the effect of the IA should be measured using a broad interpretation of the trade and commerce power. This approach interprets the legislation whilst maintaining that public policy principles that arise from a piece of legislation remain logical. The important point is that there must be attention to the duties that may arise or be eliminated as a result of the IA in addition to the character of powers and any rights in which the IA may create, change or exclude.[6] To establish the constitutional validity of the National Organic Food Security Commission (NOFSC) it must be characterised to its real character as well as its true nature[7]. The direct operation of the IA within s51 (i) of the Commonwealth Constitution must be considered so that it can be determined whether or not the NOFSC is a legitimate use of power.[8] The courts also have a duty to determine the proper operation of the IA in eliminating, changing or regulating any privileges, duties, rights and powers[9] in regards to all processes of how organic food is grown and manufactured for public consumption, it is also superfluous to ascertain if the IA is desirable or not, either socially or politically.[10] It is clear that the IA retains specific characteristics including creating the NOFSC, an authority with the power to regulate organic food, however in the case that some functions of the NOFSC do not fall within s51 (i), there is no reason to reject the legitimacy of the IA[11]. Implied incidental power may be relevant in this case, as the IA possibly operates separately from the head of power’s subject matter. The main test to determine whether the IA is within incidental range is to see if the IA is within logical and appropriate means in terms of its object or purpose in power.[12] Therefore the link of the IA to s51 (i) in respects to Trade and Commerce is sufficient. This is due to the fact that the IA is made in regards to s51 (i) rather than being insufficient or distant[13], which is why a substantial link to s51 (i) is all that characterisation covers in this case. Judicial Powers The next issue is the application of judicial powers to the NOFSC. The separation of judicial powers is not made explicitly distinct under state constitutions[14]. The two main points to consider are that judicial powers must only be to Chapter (III) courts (who can exercise Chapter (III) powers) and that these courts cannot use non Chapter (III) powers.[15] However administrative roles can be utilised if within incidental range. In terms of the parliament, it cannot use judicial powers that may put the IA and the NOFSC under the constitutional powers of trade and commerce by trying to affirm certain facts. The next question is whether the IA is exercising the judicial power of the Commonwealth. To determine the meaning of ‘judicial power’ it should be considered what were the meaning of the words at the time of the creation of the act.[16] Two judicial powers are that of judicial review and being able to make enforceable decisions that involve legal rights. In this case ‘Organic Food Rights Now’ is claiming that the IA is preventing the right to healthy food. However even though the power to enforce is specific to courts the power to make other conclusive determinations of legal rights prevent non-Chapter (III) bodies from making judgements that may have an effect on legal rights, as long as these non-Chapter (III) bodies do not have the power to make decisions that cannot be appealed, that is, any conclusive decisions.[17] Thirdly the IA creates the NOFSC which seems to be exercising judicial power, in addition there is a Federal Court Judge who will head the NOFSC which raises the issue of whether the judge is acting in their personal or judicial capacity. The nature of the power conversed is likely to be judicial and by applying the Persona Designata Rule a federal judge, in this case The Honourable Janice Hamilton, may occupy a non-judicial post.[18] The power of the NOFSC to apply punitive penalties is non-judicial. Based on the constitutional validity of the IA the NOFSC does have the authority over the organic food industry to which the act applies. However what this commission is allowed to do at most is to provide references to a Chapter (III) court so that any breaches of the IA can be legitimately enforced. Conclusion In advising Brendon, Get-it-there-Quick and Organic Food Rights Now, it is clear that it was the parliament’s intention to pass the legislation in regards to interstate trade and commerce in addition to the creation of the NOFSC which allows the Commonwealth to control subject matters specifically in relation to trade and commerce that operate within the incidental range of s51 (i). The IA is hence not unconstitutional. In regards to the separation of powers, the NOFSC is invalid in its decisions that apply to Brendon and Get-It-There-Quick and its decisions should not be enforceable on these parties. The parties should seek an opportunity to represent their case at a hearing and appeal to a court if necessary. Maanik Ruprai 17516642

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[1] W & A McAthur Ltd v Queensland (1920) 28 CLR 530 [2] Commonwealth of Australia Constitution Act, s51 (i) [3] R v Burgess; Ex Parte Henry(1936) 55 CLR 608 [4] Redfern v Dunlop Rubber Australia Ltd(1964) 110CLR194 [5] Minister for Justice (WA) (Ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian National Airlines Commission (1976) 138 CLR 492 [6] Fairfax v Federal Commissioner of Taxation (1965) 114 CLR [7] Bank of New South Wales v The Commonwealth(1948) 76CLR1 [8] Australian National Airways Pty Ltd v Commonwealth (No 1)(1945) 71CLR29 [9] Bank of New South Wales v The Commonwealth(1948) 76CLR1 [10] Australian National Airways Pty Ltd v Commonwealth (No 1)(1945) 71CLR29 [11] Murphyores Inc Pty Ltd v Commonwealth(1976) 136CLR1, [1976] HCA 20 [12] R v Burgess; Ex parte Henry(1936) 55CLR608 [13] Re Dingian and Ors Ex Parte Wagner and Anor [1995] HCA 16, 183 CLR 323, 128 ALR 81 [14] Building Construction Employees’ and Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 [15] R v. Kirby; Ex parte Boilermakers' Society of Australia[1956] HCA 10, (1956) 94CLR254 [16] Attorney-General for New South Wales v Brewery Employees Union of New South Wales) (1908) 6 CLR 469 [17] Shell Co. of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 [18] Hilton v Wells(1984) 157 CLR 57

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