Separation of power The plaintiffs argument involved two propositions, that judicial power could only be exercised by a
Chapter III Court, and that the removal and detention of people was exclusively a judicial power. That the federal judicial power could only be exercised by a court followed the 1915 decision of the High Court in
New South Wales v Commonwealth (
The Wheat Case), that the structure of the Constitution required the strict insulation of judicial power such that only a court established under Chapter III of the constitution can exercise the judicial power of the Commonwealth. The reasoning in the
Wheat Case was taken further in ''
Waterside Workers' Federation of Australia v J W Alexander Ltd where a majority of judges, Griffith CJ, Barton, Isaacs, Powers and Rich JJ, held that the power to enforce awards, being convictions for offences and the imposition of penalties and punishments, were matters appertaining exclusively to judicial power. The High Court reinforced the doctrine in the Boilermakers' Case'', holding that only a Chapter III Court could exercise judicial powers and that a Chapter III Court was only permitted to exercise judicial power. It had previously been held however that the territories were not a part of that federal judicial power. Authority for the second proposition came from
Chu Kheng Lim v Minister for Immigration, where Brennan CJ, Deane and Dawson JJ said "The involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. However, in this case only Toohey J held there was a right of
substantive equality; Gaudron J departed from her position in
Leeth to support procedural equality only. Gaudron J was accompanied by Dawson, McHugh and Gummow JJ. Brennan CJ did not consider this issue, as he found that such a right could not apply to the territories, as they were creations of parliament. Per Dawson J, the due process afforded by the existence of Chapter III courts is of a "procedural rather than substantive nature". As for the existence of discrimination in the Constitution, he disagreed with the notion that because there were provisions protecting the States from discriminatory Commonwealth laws, there should be applicable laws for individuals, on the basis that these protections were founded on different considerations. Furthermore, where the Constitution has prescribed equality, it has done so explicitly, such as the
section 92 prohibition against discrimination of a protectionist kind. However, he recognised that Deane and Toohey JJ based their doctrine of equality on "considerations of a more fundamental kind". Dawson J also attacked the notion that legal equality might arise from the Constitution as a free agreement of the people; he noted that there was a degree of equality lacking, with regards to women and Aboriginals. In relation to the common law, even if there were a common law right of substantive equality, the Commonwealth parliament has the ability to usurp the common law otherwise its concurrent power will be less than that of the States. Finally, even with the existence of Chapter III courts, it is not possible to declare a law invalid because it is substantively unequal.
Freedom of movement and association The claim for freedom of movement was not based on the express right such as the freedom of interstate commercial travel, but rather an implied right flowing from the
implied freedom of political communication, a freedom that may be subject to limitations that are reasonably appropriate and adapted to serve a legitimate end. Toohey, Gaudron, and McHugh JJ held that association and movement were inherent in political communication such that there was an implied freedom of movement and association. Toohey J held that considering the standards and perceptions prevailing at the time of the 1918 Ordinance, it was not necessarily invalid. but has not been implemented with legislation in Australia. The plaintiffs did not argue that making Aboriginal children attend a church run institution was the imposition of religious observance, but that the system of spiritual beliefs and practices of the Aboriginal people was a religion and the laws prohibited Aboriginal children from the free exercise of that religion by separating them from indigenous culture. The Bringing Them Home report had found that Aboriginal children were removed because their Aboriginality was 'a problem' and to prevent the children from acquiring Aboriginal 'habits', culture and traditions. This argument was rejected by the High Court, with the majority, Brennan CJ, Dawson J, Toohey J, and Gummow J, holding section 116 was directed to the purpose of a law and not to the effect of the law, and that the challenged laws did not have the purpose of restricting the practise of religion. held that none of the laws had that prohibited purpose. Gaudron J agreed with the majority that section 116 was directed to the purpose of the legislation, but that the purpose of the 1918 Ordinance could not be determined on the material before the High Court. Gummow J similarly left open the possibility that section 116 prohibited the use of concealed means or circuitous devices, but that would have to be established by evidence before a law could be found to be invalid. ==Aftermath==