The Impossibility of Non-Criminal Punishment by Courts in the Australian Federation

Abstract

Garlett v Western Australia [2022] 96 ALJR 888 (‘Garlett’) was a missed opportunity for the High Court of Australia to confirm a simple proposition: the scheme for the exercise of separated judicial power laid down in Ch III of the Constitution precludes any non-criminal punishment by courts. In Garlett, all but one Justice rejected or doubted that Ch III has this effect. This article identifies and resolves two points of contention that have impeded recognition that Ch III categorically precludes non-criminal punishment by courts. In doing so, it demonstrates that Ch III’s exclusive vesting of separated judicial power in courts supports a more ‘joined up’ way of thinking about permissible court functions across the Australian federation than was seen in Garlett.