Characterisation and separation of powers

August 27, 2017 Commerce


The constitutional cogency of theRegulating Organic Food Security Act 2014( Cth ) ( Impugned Act, afterlife referred to as IA ) is an issue that will be discussed in this essay in add-on to whether the National Organic Food Security Commission is valid every bit good. Both of these will be discussed with respects to the issues of word picture and separation of powers.

Head of power/Trade and Commerce

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First the range of power in this instance is non-purposive and the physical motion of organic nutrient across province boundary lines satisfies the term trade [ 1 ] , a term which is enumerated in s51 ( I ) [ 2 ] of the Australian Constitution, under trade and commercialism.

However the issue arises of whether the IA applies to interstate merely. It is implied that s 51 ( I ) does non give rise to a legislative powers in respects to merchandise and commerce operating intrastate. For the IA to be enforceable upon ‘Healthy Meals Now ‘ and ‘Get-it-there-Quick ‘ it must purport to modulate intrastate trade and commerce.Despite this even though there is no expressed power to back up intrastate trade ordinances [ 3 ] , intrastate trade may be allowed and be regulated if it is closely connected to interstate trade and commercialism [ 4 ] every bit good as if it is basically economically linked with interstate trade and commercialism [ 5 ] in which instance reasonably is.

In finding the constitutional cogency of the IA, the Commonwealth Constitution caput of power must be interpreted. In relation to this, there are two attacks that can be utilised when detecting the IA and the first is to see the IA in respects of the narrow ‘golden rule’ attack or secondly on a wide reading attack. Both of these have similar basicss in footings specifying words on their field definition so that it does non make an unlogical result. Hence to find constitutional cogency it is in kernel to construe the limitations of the caput of power.

In this instance the consequence of the IA should be measured utilizing a wide reading of the trade and commercialism power. This attack interprets the statute law whilst keeping that public policy rules that arise from a piece of statute law remain logical. The of import point is that there must be attending to the responsibilities that may originate or be eliminated as a consequence of the IA in add-on to the character of powers and any rights in which the IA may make, alteration or exclude. [ 6 ]

To set up the constitutional cogency of the National Organic Food Security Commission ( NOFSC ) it must be characterised to its existent character every bit good as its true nature [ 7 ] . The direct operation of the IA within s51 ( one ) of the Commonwealth Constitution must be considered so that it can be determined whether or non the NOFSC is a legitimate usage of power. [ 8 ]

The tribunals besides have a responsibility to find the proper operation of the IA in extinguishing, altering or modulating any privileges, responsibilities, rights and powers [ 9 ] in respects to all procedures of how organic nutrient is grown and manufactured for public ingestion, it is besides otiose to determine if the IA is desirable or non, either socially or politically. [ 10 ]

It is clear that the IA retains specific features including making the NOFSC, an authorization with the power to modulate organic nutrient, nevertheless in the instance that some maps of the NOFSC do non fall within s51 ( I ) , there is no ground to reject the legitimacy of the IA [ 11 ] . Implied incidental power may be relevant in this instance, as the IA perchance operates individually from the caput of power’s capable affair. The chief trial to find whether the IA is within incidental scope is to see if the IA is within logical and appropriate agencies in footings of its object or intent in power. [ 12 ]

Therefore the nexus 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 respects to s51 ( I ) instead than being deficient or distant [ 13 ] , which is why a significant nexus to s51 ( I ) is all that word picture covers in this instance.

Judicial Powers

The following issue is the application of judicial powers to the NOFSC. The separation of judicial powers is non made explicitly distinguishable under province fundamental laws [ 14 ] . The two chief points to see are that judicial powers must merely be to Chapter ( III ) tribunals ( who can exert Chapter ( III ) powers ) and that these tribunals can non utilize non Chapter ( III ) powers. [ 15 ] However administrative functions can be utilized if within incidental scope. In footings of the parliament, it can non utilize judicial powers that may set the IA and the NOFSC under the constitutional powers of trade and commercialism by seeking to confirm certain facts.

The following inquiry is whether the IA is exerting the judicial power of the Commonwealth. To find the significance of ‘judicial power’ it should be considered what were the significance of the words at the clip of the creative activity of the act. [ 16 ] Two judicial powers are that of judicial reappraisal and being able to do enforceable determinations that involve legal rights. In this instance ‘Organic Food Rights Now’ is claiming that the IA is forestalling the right to healthy nutrient.

However even though the power to implement is specific to woo the power to do other conclusive findings of legal rights prevent non-Chapter ( III ) organic structures from doing opinions that may hold an consequence on legal rights, every bit long as these non-Chapter ( III ) organic structures do non hold the power to do determinations that can non be appealed, that is, any conclusive determinations. [ 17 ]

Third the IA creates the NOFSC which seems to be exerting judicial power, in add-on there is a Federal Court Judge who will head the NOFSC which raises the issue of whether the justice is moving in their personal or judicial capacity. The nature of the power conversed is likely to be judicial and by using the Persona Designata Rule a federal justice, in this instance The Honourable Janice Hamilton, may busy a non-judicial station. [ 18 ]

The power of the NOFSC to use punitory punishments is non-judicial. Based on the constitutional cogency of the IA the NOFSC does hold the authorization over the organic nutrient industry to which the act applies. However what this committee is allowed to make at most is to supply mentions to a Chapter ( III ) tribunal so that any breaches of the IA can be lawfully enforced.


In reding Brendon, Get-it-there-Quick and Organic Food Rights Now, it is clear that it was the parliament’s purpose to go through the statute law in respects to interstate trade and commercialism in add-on to the creative activity of the NOFSC which allows the Commonwealth to command capable affairs specifically in relation to merchandise and commerce that operate within the incidental scope of s51 ( I ) . The IA is therefore non unconstitutional. In respects to the separation of powers, the NOFSC is invalid in its determinations that apply to Brendon and Get-It-There-Quick and its determinations should non be enforceable on these parties. The parties should seek an chance to stand for their instance at a hearing and entreaty to a tribunal if necessary.

Maanik Ruprai



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