Cunningham v Commonwealth of Australia & Anor

The applicant, Mr. Cunningham, brought proceedings against the Commonwealth of Australia and the Australian Securities and Investments Commission (ASIC) in the High Court of Australia. The dispute concerned the validity of certain provisions of the *Corporations Act 2001* (Cth) and the constitutional validity of ASIC's exercise of its powers under those provisions.

The central legal issue before the High Court was whether the impugned provisions of the *Corporations Act* and ASIC's actions pursuant to them were constitutionally valid, particularly in light of the separation of powers doctrine and the requirements for the exercise of judicial power. Mr. Cunningham contended that the legislation and ASIC's conduct infringed upon the constitutional framework by vesting non-judicial power in an executive body.

In his judgment, Gageler ACJ considered the nature of judicial power and the limitations imposed by Chapter III of the Constitution. His Honour analysed the distinction between judicial power and other forms of governmental power, focusing on whether the functions exercised by ASIC were inherently judicial in character or fell within the executive or legislative spheres. The reasoning involved an examination of the statutory framework and the practical effect of ASIC's powers, assessing whether they involved the determination of rights and liabilities in a manner characteristic of a court.