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IN THE FULL COURT OF THE HIGH COURT OF AUSTRALIA
WEEK 10 MOOT SP2 2016
BETWEEN
SOUTH AUSTRALIA Appellant
and
ATTORNEY-GENERAL (CTH) Respondent
APPELLANT’S SUBMISSION Suzanne Stone (Junior Counsel)
BACKGROUND
This is a first instance proceeding to determine if there is sufficient validity to the Australian
Constitution (‘the Constitution’) to sections 25(a)(b), 31 and 45 of the Justice Act 2014 (Cth)
(‘the Act’) with respect to the application of section 24 of the Act.
GROUNDS FOR SUBMISSION
In the event that special leave is granted by this Court, the issues presented may be summarised
by reference to three submissions:
1.1. Federal judiciary rules subject to State supreme court judges
In context with the Act ss 24, 25, 31 and 45, a State Supreme Court judge, whom
ordinarily exercises the judiciary power of the Commonwealth and, has been appointed
to the Australian Justice Commission as per s 25(b), is also subject to the same federal
judiciary rules pursuant to Chapter III of the Constitution, as that of a federally
appointed justice to the Australian Justice Commission as per s 25(b) of the Act.
1.2. Constitutional Validity – Justice Act 2014 (Cth) s 25(a)
In context with the Act ss 24, 31, and 45, the requirement of including the Australian
Justice Commission with three justices of a federal court, pursuant to s 25 (a) of the
Act, is invalid to Chapter III of the Constitution, due to incompatibility of the exceptions
persona designata doctrine three-limb test as per Wilson v Minister for Aboriginal &
Torres Strait Islander Affairs (1996) 189 CLR 1. In that:
2
1.2.1. the functions required by a federally appointed justice, would be too closely
connected with the functions of the Legislature and Executive Government; or
1.2.2. the functions that are required under ss 24(1), 31 and 45 of the Act, would not
be performed independently of any instruction, advice or wish of the
Legislature or the Executive Government, other than a law or an instrument
made under a law; or
1.2.3. the discretions purportedly possessed by a judge subject to Chapter III of the
Constitution, are exercised on political grounds with respect to the provisions
of ss 24, 25, 31 and 45 of the Act.
1.3. Constitutional Validity – Justice Act 2014 (Cth) s 25(b)
Should this Court find that:
(a) a State Supreme Court judge appointed to the Australian Justice Commission,
pursuant to s 25(b) of the Act, is subject to the same judiciary rules, pursuant to
Chapter III of the Constitution, as that of a federal justice appointed to the
Australian Justice Commission pursuant to s 25(a) of the Act; and
(b) s 25 (a) of the Act to be invalid to Chapter III of the Constitution; that
it follows, that s 25 (b) is also found to be invalid to Chapter III of the Constitution, due
to incompatibility of the exceptions persona designata doctrine three-limb test as per
Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1
On the basis of the above submissions, this counsel for the appellant respectfully requests that
the motion be upheld.
DATED 2 May 2016
Sue Stone
Junior Council for the Appellant

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Constitutional Law - Written Submission Moot Assessment (Including Moot - Distinction)

  • 1. IN THE FULL COURT OF THE HIGH COURT OF AUSTRALIA WEEK 10 MOOT SP2 2016 BETWEEN SOUTH AUSTRALIA Appellant and ATTORNEY-GENERAL (CTH) Respondent APPELLANT’S SUBMISSION Suzanne Stone (Junior Counsel) BACKGROUND This is a first instance proceeding to determine if there is sufficient validity to the Australian Constitution (‘the Constitution’) to sections 25(a)(b), 31 and 45 of the Justice Act 2014 (Cth) (‘the Act’) with respect to the application of section 24 of the Act. GROUNDS FOR SUBMISSION In the event that special leave is granted by this Court, the issues presented may be summarised by reference to three submissions: 1.1. Federal judiciary rules subject to State supreme court judges In context with the Act ss 24, 25, 31 and 45, a State Supreme Court judge, whom ordinarily exercises the judiciary power of the Commonwealth and, has been appointed to the Australian Justice Commission as per s 25(b), is also subject to the same federal judiciary rules pursuant to Chapter III of the Constitution, as that of a federally appointed justice to the Australian Justice Commission as per s 25(b) of the Act. 1.2. Constitutional Validity – Justice Act 2014 (Cth) s 25(a) In context with the Act ss 24, 31, and 45, the requirement of including the Australian Justice Commission with three justices of a federal court, pursuant to s 25 (a) of the Act, is invalid to Chapter III of the Constitution, due to incompatibility of the exceptions persona designata doctrine three-limb test as per Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1. In that:
  • 2. 2 1.2.1. the functions required by a federally appointed justice, would be too closely connected with the functions of the Legislature and Executive Government; or 1.2.2. the functions that are required under ss 24(1), 31 and 45 of the Act, would not be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law; or 1.2.3. the discretions purportedly possessed by a judge subject to Chapter III of the Constitution, are exercised on political grounds with respect to the provisions of ss 24, 25, 31 and 45 of the Act. 1.3. Constitutional Validity – Justice Act 2014 (Cth) s 25(b) Should this Court find that: (a) a State Supreme Court judge appointed to the Australian Justice Commission, pursuant to s 25(b) of the Act, is subject to the same judiciary rules, pursuant to Chapter III of the Constitution, as that of a federal justice appointed to the Australian Justice Commission pursuant to s 25(a) of the Act; and (b) s 25 (a) of the Act to be invalid to Chapter III of the Constitution; that it follows, that s 25 (b) is also found to be invalid to Chapter III of the Constitution, due to incompatibility of the exceptions persona designata doctrine three-limb test as per Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 On the basis of the above submissions, this counsel for the appellant respectfully requests that the motion be upheld. DATED 2 May 2016 Sue Stone Junior Council for the Appellant